Adams v. Hepp et al

Filing 78

ORDER signed by Judge Pamela Pepper on 4/23/2019 OVERRULING 75 plaintiff's objections to Judge Duffin's March 14, 2019 order. (cc: all counsel, via mail to Paul Adams at Jackson Correctional Institution)(cb)

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

Case No. 17-cv-699-pp-wed

RANDALL R. HEPP, et al.,
Defendants.
______________________________________________________________________________
DECISION OVERRULING PLAINTIFF’S OBJECTIONS TO MAGISTRATE
JUDGE DUFFIN’S MARCH 14, 2019 ORDER (DKT. NO. 75)
______________________________________________________________________________
On July 17, 2017, the court issued an order screening the complaint,
and allowing the plaintiff to proceed against John and Jane Doe defendants
and Warden Randall Hepp on claims that they were deliberately indifferent to
his serious medical needs in violation of the Eighth Amendment. Dkt. No. 16.
The plaintiff asked the court to reconsider that order, dkt. no. 17; the court
denied that request, dkt. no. 22. The court gave the plaintiff an opportunity to
file an amended complaint by August 31, 2017; he didn’t file an amended
complaint, and defendant Hepp answered the original complaint on September
14, 2017, dkt. no. 26. About a week later, the court received the plaintiff’s
motion for an extension of time to amend the complaint, dkt. no. 27; the court
granted that motion and gave him a deadline of November 24, 2017 to amend,
dkt. no. 28. Eventually, after some other bumps in the road, the plaintiff filed
an amended complaint on December 20, 2017, dkt. no. 33, but then asked to
add more claims, dkt. no. 35. The court denied that request, screened the
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amended complaint, and this time allowed the plaintiff to proceed on deliberate
indifference claims against nurses Dawn P. and Truen, nurse practitioner
Frank, Dr. Larson, Henrich, Whitman, Floeter, nurse Jane Doe, CO DeBrees
and Warden Hepp. Dkt. No. 48 at 8-9. Defendant Hepp answered the amended
complaint on September 11, 2018, dkt. no. 51, and the other defendants
answered on October 26, 2018, dkt. no. 58. The court then issued a scheduling
order, setting a deadline of April 1, 2019 for completing discovery and a
deadline of May 1, 2019 for filing dispositive motions. Dkt. No. 59.
The court referred this case to Magistrate Judge William Duffin to handle
all pretrial matters. Dkt. No. 62. Meanwhile, in the two and a half months after
the court issued the scheduling order, the court received five letters from the
plaintiff—he asked questions about the scheduling order, advised the court of
his health status and made complaints about institution staff, demanded that
the court expedite his case and require the institution to give him his legal files
while in the infirmary, and demanded appointment of counsel and expert
witnesses. Dkt. Nos. 60-61, 64-65. On January 4, 2019, Judge Duffin
conducted a status conference. Dkt. No. 66. During the hour-long hearing,
Judge Duffin addressed the various issues the plaintiff had raised in the
letters, explained further some of the things this court had said in its orders,
set a deadline for the defendant to provide the identities of nurses, set a
deadline for the plaintiff to identify the Doe defendants, answered the plaintiff’s
questions to the extent that he could without giving legal advice, gave the
plaintiff the opportunity to file an amended complaint and scheduled another
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status conference for February 8, 2019. Dkt. No. 66. Not quite three weeks
later, the plaintiff filed another letter. Dkt. No. 67. Judge Duffin addressed that
letter, and numerous other issues, at the February 8, 2019 hearing. Dkt. No.
68. One of the things discussed at the hearing was the need for the plaintiff to
identify the Jane Doe nurse whom the plaintiff alleged denied him a private
area to self-administer enemas—there were three nurses working that night. Id.
at 2. The plaintiff asked why counsel for the defendants couldn’t just ask those
three nurses if they remembered the incident; Judge Duffin directed defense
counsel to do so, and let the plaintiff know by February 15, 2019. Id. at 2-3.
The plaintiff then could let the court know the name of the nurse, and the
court could substitute that name for the Jane Doe placeholder. Id. The plaintiff
agreed with this proposal.
Defense counsel then raised the question of whether the deadlines for
conducting discovery and filing motions needed to be extended. Id. at 4. The
plaintiff said he didn’t want to extend deadlines, and offered that if it was
identification of the Jane Doe nurse that would require extension of the
discovery deadline, he was willing to waive identifying her and just proceed
with the defendants he already had. Id. Given that, Judge Duffin dismissed the
Jane Doe defendant, but because of defense counsel’s trial schedule and the
need to depose the plaintiff, extended the discovery deadline anyway, moving
the deadline for completing discovery to May 1, 2019—the same date
dispositive motions were due. Id.

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A few days later, the court received from the plaintiff fifty-three pages of
documents, alleging that Judge Duffin “unduly swayed” him to believe that it
was “pointless” to question the three nurses present about whether they
remembered the enema incident. Dkt. No. 69. He “withdrew” his agreement to
waive identification of the Jane Doe defendant, moved to reinstate her as a
defendant, moved to add additional Doe defendants, moved to depose witnesses
and moved to compel the defendants to respond to his discovery requests. Id.
On March 14, 2019, Judge Duffin denied the plaintiff’s motions. Dkt. No. 73.
The court received the plaintiff’s written objections to Judge Duffin’s order
about a week later. Dkt. No. 75.
Under Federal Rule of Civil Procedure 72(a), when a magistrate judge
who is handling a case on referral enters an order that does not dispose of a
claim or of the whole case, the losing party may file written objections to the
order within fourteen days. The district judge who referred the case must
timely consider the objections and modify or set aside any part of the order
that is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). The clearerror standard is highly deferential; a district judge will modify a magistrate
judge’s decision only if he or she is convinced that the magistrate judge made a
mistake. McGuire v. Carrier Corp., 09-cv-315, 2010 WL 231099, at *1 (S.D.
Ind. Jan. 13, 2010) (citing Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d
926, 943 (7th Cir. 1997)). The fact that a district judge would have come to a
different conclusion is an insufficient basis for the district judge to modify the
magistrate judge’s order. Id.
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Judge Duffin’s order was not clearly erroneous or contrary to law.
Regarding the plaintiff’s request to reinstate Nurse Jane Doe, Judge Duffin did
exactly what the plaintiff asked—he ordered the defendants’ lawyer to question
the nurses on duty at the time about the identity of the Jane Doe. It was the
plaintiff who chose to forego identification of Nurse Doe, apparently because he
did not want the court to extend the deadlines for discovery. As it turned out,
Judge Duffin extended the deadline anyway, because of defense counsel’s
schedule. But he extended it by only a month, and he didn’t extend the
dispositive motions deadline at all, so the extension of the discovery deadline
will not slow the progress of the case. Further, the plaintiff said more than once
that identifying this single Doe defendant was not going to change the course of
the case one way or the other, another reason he agreed to proceed without
identifying her. Judge Duffin did not “sway” the plaintiff that identifying Nurse
Doe would be pointless; he was on the road to allowing the plaintiff to identify
Nurse Doe until the plaintiff said it wasn’t necessary.
With regard to the plaintiff’s request to add other Doe defendants—under
28 U.S.C. §1915A(a) and (b), a court must screen a prisoner’s complaint and
“identify cognizable claims.” That means that the claims with which a prisoner
may proceed are limited to the claims the court identifies in its screening order.
As Judge Duffin noted, this court’s August 27, 2018 screening order is not
ambiguous. The court allowed the plaintiff to proceed against only a single
Jane Doe Nurse (who the plaintiff since has dismissed). Dkt. No. 48 at 9. Judge
Duffin was correct not to allow the plaintiff to add more Doe defendants.
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Judge Duffin’s denial of the plaintiff’s motion to compel was not clearly
erroneous or contrary to law. Judge Duffin denied the plaintiff’s motion
because the plaintiff did not comply with Civil Local Rule 37. Courts have
broad discretion to enforce local procedural rules to move cases along as
efficiently as possible. A. Bauer Mech., Inc. v. Joint Arbitration Bd. of Plumbing
Contractors’ Ass’n and Chi. Journeymen Plumbers’ Local Union 130, U.A., 562
F.3d 784, 790 (7th Cir. 2009). This court has denied motions to compel when
parties do not comply with Local Rule 37, just as Judge Duffin did. The court
expects all parties to comply with its local rules.
At the end of his objections, the plaintiff states, “If this court den[ie]s the
addition of the named doe’s [sic], then I will take leave to amend my complaint
as originally directed by the court to add the doe’s and Greg Phal, and Holly
Meyer.” Dkt. No. 75. The court will not allow the plaintiff to amend his
complaint as he proposes. Under Federal Rule of Civil Procedure 15(a), courts
should freely give a plaintiff leave to amend when justice so requires. Foman v.
Davis, 371 U.S. 178, 182 (1962). But courts need not grant leave to amend
when there is an apparent reason not to do so, such as undue delay. Id. If the
court were to allow the plaintiff to amend his complaint as he proposes, it
would unduly delay the case, which has been pending for almost two years (as
the plaintiff himself has complained in some earlier letters).
On December 18, 2018, the court denied the plaintiff’s motion to
reconsider its decision to dismiss Greg Phal and Holly Meyer as defendants.
Dkt. No. 62 at 3-5. The court explained that it would not consider allegations
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that the plaintiff had not included in his amended complaint when determining
whether the plaintiff stated a claim against someone. Id. The court then said:
This case has been pending for well over a year and filing another
amended complaint will further delay it. The plaintiff is already
proceeding against nine named defendants on claims that are very
similar to (and in some cases overlap with) the claims he wants to
pursue against Phal and Meyer. The court advises the plaintiff to
consider whether what he will gain in adding Phal and Meyer as
defendants outweighs the delay that will result if he amends his
complaint again.
Dkt. No. 62 at 4-5.
Four months have passed since the court instructed the plaintiff to
decide whether to file an amended complaint. In all that time, the plaintiff did
not file an amended complaint, even though the court gave him instructions on
how to do so in its December 18, 2018 order. Because this case has been
pending for nearly two years and discovery closes and dispositive motions are
due in less than two weeks, the court will not allow the plaintiff to file a second
amended complaint.
The court OVERRULES the plaintiff’s objections to Judge Duffin’s March
14, 2019 order. Dkt. No. 75.
Dated in Milwaukee, Wisconsin, this 23rd day of April, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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