Yeoman v. Manlove et al

Filing 33

ORDER signed by Judge Pamela Pepper on 6/11/2018. 20 Plaintiff's Motion to Amend/Correct Complaint GRANTED; plaintiff may proceed with supplemental state law medical malpractice claim against defendants Manlove and Waltz. 21 Plaintiff' ;s Motion for Extension of Time DENIED as moot. 22 Plaintiff's Motion to Appoint Special Expert DENIED without prejudice. 24 Plaintiff's Motion to Strike Affirmative Defenses DENIED. Briefing on defendants' motion for summary judgm ent SUSPENDED. Defendants to answer or otherwise respond to plaintiff's supplemental state law malpractice claim by 7/13/2018; once defendants file responsive pleading, the court will set new briefing deadlines. (cc: all counsel, via mail to Adam Yeoman at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ADAM YEOMAN,
Plaintiff,
v.

Case No. 17-cv-1199-pp

DR. JEFFREY MANLOVE, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S MOTION TO AMEND
THE COMPLAINT (DKT. NO. 20), DENYING AS MOOT THE PLAINTIFF’S
MOTION FOR EXTENSION OF TIME (DKT. NO. 21), DENYING THE
PLAINTIFF’S MOTION FOR APPOINTMENT OF SPECIAL EXPERT (DKT. NO.
22), DENYING THE PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE
DEFENSES (DKT. NO. 24) AND MODIFYING SCHEDULING ORDER
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint under 42 U.S.C. §1983, alleging that the defendants had violated
his civil rights at the Waupun Correctional Institution (“WCI”). Dkt. No. 8. The
court screened the complaint, and allowed the plaintiff to proceed on an Eighth
Amendment claim that Doctor Jeffrey Manlove, Nurse Gail Waltz and Sergeant
Jodi Tritt showed deliberate indifference toward his serious medical need by
failing to provide treatment for his broken arm for almost an entire week. Dkt.
No. 10 at 7. Since then, the plaintiff has filed several motions: (1) a motion to
amend the complaint, dkt. no. 20; (2) a motion for extension of time, dkt. no.
21; (3) a motion for appointment of special expert, dkt. no. 22; and (4) a motion
to strike affirmative defenses, dkt. no. 24.

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A.

Motion to Amend Complaint (Dkt. No. 20)
The plaintiff asks to amend his complaint to include a supplemental

state law medical malpractice claim against Doctor Manlove and Nurse Waltz.
Dkt. No. 20. Although the plaintiff did not file a proposed amended complaint
along with his motion to amend, the facts in the plaintiff’s original complaint
are sufficient to allow him to proceed on this claim, and the defendants have
not objected to the motion. In the original complaint, the plaintiff alleged that
despite recording his pain as a ten out of ten and hearing from him that he’d
heard a bone snap, Nurse Waltz gave him a BandAid, and even though she
knew he did not have his own meds or ice, did not give him a medical
restriction. Dkt. No. 1 at 3. He alleged that defendant Manlove did not give him
an x-ray or get him to an outside emergency room. He did not get a splint, sling
or cast, despite his request. Id. at 4. The court will allow the plaintiff to proceed
with a supplemental state law medical malpractice claim against defendants
Manlove and Waltz.
The plaintiff also asks to proceed with a “garden variety negligence” claim
against Manlove, Waltz and Tritt. Dkt. No. 20 at 2. The plaintiff does not
provide any further information about this “garden variety” negligence claim—
he does not say what these defendant did that constituted negligence. The
court will not allow him to add such a vague claim to his complaint.
The court notes that since the plaintiff filed his motion, the defendants
have filed their motion for summary judgment. Dkt. No. 27. The court will
suspend briefing on the summary judgment motion, and give Manlove and
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Waltz a deadline to answer or otherwise respond to the plaintiff’s supplemental
malpractice claim. Once they have answered or otherwise responded, the court
will set new deadlines in accordance with whatever responsive pleading those
defendants file.
B.

Motion for an Extension of Time (Dkt. No. 21)
In a motion dated April 2, 2018, the plaintiff asked the court to extend

the deadlines for completing discovery and for filing summary judgment
motions by sixty days. Dkt. No. 21. He indicated that he had been placed in
segregation, had had trouble getting help from jailhouse lawyers, and that the
institution was “doing away with legal route.” Id. at 1-2. Two weeks after the
court received this motion, the court received an “addendum” from the plaintiff,
indicating that he no longer needed the extension. Dkt. No. 23. Given that, the
court will deny the plaintiff’s motion as moot.
C.

Motion for Appointment of Special Expert (Dkt. No. 22)
The plaintiff asked the court to appoint a medical expert to prove his

state law medical malpractice claim. Dkt. No. 22. Federal Rule of Evidence
706(a) gives district courts discretion to appoint a medical expert in civil cases.
Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). The fact that a
medical expert would help an inmate prevail on his claims at trial, however,
does not require the court to exercise its authority under Rule 706. See id.
Indeed, a court need not appoint an expert even in cases where the plaintiff
requires an expert to prove his case. See id.

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Rule 706(c) provides that any expert appointed by the court is entitled to
reasonable compensation. The court does not have funds to pay an expert.
Either the expert must provide services free of charge, or some other entity
must pay the expert’s fees.
At this stage of the litigation, the plaintiff is not required to prove that
Manlove and Waltz committed malpractice. Once those defendants file their
responsive pleading, the plaintiff will need to respond to their legal arguments
(either in response to a motion to dismiss or an amended motion for summary
judgment). If the plaintiff’s state-law malpractice claim survives and ends up
proceeding to trial, the plaintiff may renew his request that the court appoint
an expert.
D.

Motion to Strike Affirmative Defenses (Dkt. No. 24)
Finally, the plaintiff asks the court to strike the defendants’ affirmative

defenses under Federal Rule of Civil Procedure 12(f). Dkt. No. 24. The plaintiff
argues that the defendants are not entitled to qualified/sovereign immunity,
and that the defendants did cause his injuries—the injuries were not caused by
an “intervening superseding action.” Id.
Rule 12(f) allows the court to strike from a pleading “an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” The
plaintiff may disagree with the defendants’ affirmative defenses, but the
affirmative defenses are not redundant, immaterial, impertinent or scandalous.
As employees or agents of the state, they have the right to make a legal
argument regarding whether they are entitled to immunity. And they have the
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right to defend themselves against the plaintiff’s allegations that they caused
his injuries, or that they made them worse. The plaintiff may address the
merits of the affirmative defenses through his response to the summary
judgment motion, or at trial. The court will deny the motion to strike
affirmative defenses.
E.

Conclusion
The court GRANTS the plaintiff’s motion to amend the complaint. Dkt.

No. 20. The plaintiff may proceed with a supplemental state law medical
malpractice claim against Manlove and Waltz.
The court DENIES as moot the plaintiff’s motion for extension of time.
Dkt. No. 21.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion for
appointment of special expert. Dkt. No. 22.
The court DENIES the plaintiff’s motion to strike affirmative defenses.
Dkt. No. 24.
The court ORDERS that the briefing schedule for summary judgment,
which the court set in its January 11, 2018 scheduling order at dkt. no. 18, is
SUSPENDED. The court ORDERS that, by the end of the day on Friday, July
13, 2018, defendants Manlove and Waltz shall answer or otherwise respond to

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the plaintiff’s supplemental state law malpractice claim. Once they have filed
their responsive pleading, the court will set new deadlines.
Dated in Milwaukee, Wisconsin this 11th day of June, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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