Adams v. Hepp et al

Filing 22

ORDER signed by Judge Pamela Pepper on 8/3/2017 DENYING 17 Plaintiff's Motion for Reconsideration. Plaintiff may file amended complaint by 8/31/2017; if he fails to do so, case will continue with claims against defendants permitted in the court's 7/17/2017 order. (cc: all counsel, via mail to Paul Adams at Fox Lake Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
PAUL ALLEN ADAMS,
Plaintiff,
v.

Case No. 17-cv-699-pp

RANDALL R. HEPP, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION (DKT. NO. 17) AND GIVING PLAINTIFF THE
OPPORTUNITY TO FILE AN AMENDED COMPLAINT
______________________________________________________________________________
This case currently is assigned to Magistrate Judge William Duffin;
however, because the defendants have not had the opportunity to consent to
magistrate judge jurisdiction, the clerk’s office randomly referred the case to a
district court judge for the limited purpose of screening the plaintiff’s
complaint. On July 17, 2017, the court screened the plaintiff’s complaint as
required by the Prison Litigation Reform Act, and allowed the plaintiff to
proceed with deliberate indifference claims against Randall Hepp and John and
Jane Does. Dkt. No. 16. The court dismissed the plaintiff’s claims against Dr.
Larson and Candi Whitman because, although the plaintiff named those
individuals in the caption of the case, he failed to include any allegations about
what they had done or not done to violate his constitutional rights. Id. The
court also denied the plaintiff’s motion for the appointment of counsel, finding
that the plaintiff, at least at this point, was capable of representing himself. Id.

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The court since has received from the plaintiff a document, which the
court will construe as a motion for reconsideration, challenging the court’s
dismissal of Larson and Whitman and its denial of his motion for the
appointment of counsel. Dkt. No. 17. In his brief in support of this motion, the
plaintiff argues that he is cognitively and physically disabled, and that he made
a “technical mistake” by not including any allegations about Larson and
Whitman in the body of his complaint. Dkt. No. 18 at 1. He argues that it is
“common sense” that, if he named them in the caption, these individuals are
the ones who failed to protect him from “torture.” Id. He goes on to argue that
the court’s willingness to dismiss these individuals as result of “such a trivial
mistake” and “technical error” makes it obvious that he is unable to represent
himself. Id. at 1-2.
The plaintiff’s failure to include allegations about Larson and Whitman
was not “technical” or “trivial.” The law requires courts to screen complaints
filed by prisoners, and to determine whether a plaintiff’s allegations are
frivolous, malicious or fail to state a claim. Courts cannot allow a prisoner to
throw unsupported allegations against just anyone, and cannot put defendants
to the expense of answering and defending against unexplained allegations.
The law requires a plaintiff to explain in his complaint what it is that he
believes each defendant did to violate his constitutional rights; if the plaintiff
does not make any specific allegations against a particular defendant, the court
must dismiss that defendant. The plaintiff still has not made any specific
allegations describing what Larson and Whitman did (other than to generally
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state that they did not protect him). The court will not reconsider its decision to
dismiss Larson and Whitman.
That said, the court will allow the plaintiff to file an amended complaint
that includes specific allegations against Larson and Whitman. If the plaintiff
chooses to file such an amended complaint, he must provide details—who is
Dr. Larson? What was his relationship to the plaintiff? Did the plaintiff speak
to Dr. Larson about his diarrhea, pain and bleeding? How many times? What
did Dr. Larson do in response? Who is Candi Larson? What interactions did the
plaintiff have with her? What did he ask her to do? What did she do in
response? If the plaintiff files an amended complaint containing these specific
allegations, the court will consider them, and consider whether to reinstate
Larson and Whitman as defendants.
If he chooses to file an amended complaint, the plaintiff must do so by
August 31, 2017. The amended complaint must bear the docket number
assigned to this case and must be labeled “Amended Complaint.” The amended
complaint will take the place of the original complaint and must be complete in
itself without reference to the original complaint. See Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998).
In other words, the plaintiff cannot simply file a supplement to his original
complaint, nor may he just add on to the original complaint by filing the
allegations against Larson and Whitman. Instead, he must file a new complaint
that contains all of the allegations against all of the defendants against whom
he seeks to state a claim. If the court receives an amended complaint by the
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deadline, it will screen it pursuant to 28 U.S.C. §1915A. If the court does not
receive an amended complaint by the deadline, the case will continue with the
plaintiff’s claims against Hepp and the Does as permitted in the court’s July 17
order.
Finally, the plaintiff’s motion for reconsideration confirms in the court’s
mind that the plaintiff is capable of representing himself at this time. He
understands the issues and his claims, and he is able to communicate
effectively with the court and advocate for what he wants. He has presented no
reason for the court to reconsider its decision to deny his motion for the
appointment of counsel at this time.
Accordingly, the court DENIES the plaintiff’s motion for reconsideration.
Dkt. No. 17. The court ORDERS that the plaintiff may file an amended
complaint consistent with this order, if he does so in time for the court to
receive it by August 31, 2017. If he fails to do so, the case will continue
consistent with the court’s July 17, 2017 order.
Dated in Milwaukee, Wisconsin this 3rd day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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