Zibolsky v. Department of Corrections et al
ORDER signed by Judge Pamela Pepper on 11/20/2017 DENYING 9 plaintiff's motion to amend/correct. (cc: all counsel, via mail to John Zibolsky at Wisconsin Resource Center) (cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN WAYNE ZIBOLSKY,
Case No. 17-cv-1196-pp
DECISION AND ORDER DENYING
PLAINTIFF’S MOTION TO AMEND (DKT. NO. 9)
The plaintiff filed a motion to amend his complaint. Dkt. No. 9. He asks
to add Winnebago County as a defendant. The court will deny the motion.
First, the plaintiff did not comply with the procedural rules for amending
a complaint. Federal Rule of Civil Procedure 15 and Civil Local Rule 15 (E.D.
Wis.) require that the plaintiff file a motion, asking the court for permission to
amend his complaint, and that he must attach to the motion the proposed
amended complaint. An amended complaint replaces previously filed
complaints, so a plaintiff cannot simply tack on claims or defendants in
separate filings. He needs to include all of the parties and claims in one
Second, even if the plaintiff had followed the rules, the court would not
have allowed him to amend his complaint, because granting a plaintiff leave to
amend is inappropriate when doing so would be futile. See Allen v. Wine, 297
Fed.Appx. 524, 531 (7th Cir. 2008).
It would be futile to allow the plaintiff to amend his complaint to name
Winnebago County as a defendant. The court has allowed the plaintiff to
proceed on a failure-to-protect claim against a correctional officer at Oshkosh
Correctional Institution. The plaintiff does not explain why he wants to add
Winnebago County—his motion simply statutes that he wants to add the
Under §1983 (the statute under which the plaintiff brought his lawsuit),
only individuals or entities who are personally responsible for a constitutional
violation can be liable. Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir.
2009). In other words, a plaintiff must show that the defendant—even an
organizational defendant like Winnebago County—personally caused or
participated in a constitutional violation in order to proceed with a lawsuit
against that person or entity. Hildebrandt v. Illinois Dept. of Natural Resources,
347 F.3d 1014, 1039 (7th Cir. 2003). Without any allegation that Winnebago
County participated in the alleged failure to protect the plaintiff, the court
would not allow him to proceed on a claim against the County even if he filed
The court DENIES the plaintiff's motion for leave to amend. Dkt. No. 9.
Dated in Milwaukee, Wisconsin this 20th day of November, 2017.
BY THE COURT:
HON. PAMELA PEPPER
United States District Court Judge
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