Benjamin v. Does et al

Filing 86

ORDER signed by Chief Judge Pamela Pepper on 6/11/2023 DENYING 81 plaintiff's motion to amend complaint. Amended complaint at dkt. no. 18 remains operative complaint. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
LESHAUN BENJAMIN,
Plaintiff,
v.

Case No. 18-cv-570-pp

ALICIA SANCHEZ,
Defendant.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE A THIRD
AMENDED COMPLAINT (DKT. NO. 81)
______________________________________________________________________________
On November 21, 2022, the court received plaintiff LeShaun Benjamin’s
motion for leave to amend his complaint and a proposed third amended
complaint. Dkt. No. 81. The court will deny the plaintiff’s motion for leave to file
the third amended complaint and deny his request to proceed on the proposed
third amended complaint.
I.

Procedural Background
The plaintiff began this case on April 7, 2018, when he filed a pro se

complaint under 42 U.S.C. §1983. Dkt. No. 1. On May 10, 2018, he moved to
amend and/or supplement the complaint. Dkt. No. 9. The court denied the
motion but gave him a deadline of October 19, 2018 by which to file an
amended complaint. Dkt. No. 11. That order was returned to the court as
undeliverable, dkt. no. 12, but the plaintiff provided a new address to which
the court forwarded the order, dkt. No. 13. The court twice extended the
plaintiff’s deadline to file an amended complaint, dkt. nos. 15, 17; and on
January 23, 2019, the court received the amended complaint. Dkt. No. 18. The

1

court screened the amended complaint and ordered service on the only
defendant, Alicia Sanchez. Dkt. No. 21.
The parties filed several motions over the next year and a half; the only
one of relevance here is the plaintiff’s motion asking the court to recruit
counsel, dkt. no. 54, which the court granted during a status conference on
May 12, 2021, dkt. no. 60. On December 8, 2021, the court issued an order
noting that Attorney James Santelle had agreed to represent the plaintiff. Dkt.
No. 63. Attorney Santelle filed his notice of appearance on January 24, 2022.
Dkt. No. 68. On February 10, 2022, the court held a status conference with the
parties; this was the first time Attorney Santelle appeared on behalf of the
plaintiff. Dkt. No. 71. The plaintiff’s counsel informed the court that he had
spoken with the plaintiff but had not yet reviewed the discovery. Id. at 1.
Defense counsel agreed to provide the plaintiff’s counsel all discovery materials.
Id. at 2. The court gave the parties additional time to exchange discovery and
familiarize themselves with the case. Id.
On March 30, 2022, the court held another status conference. Dkt. No.
73. The plaintiff’s counsel informed the court “that he had received and
reviewed all the discovery,” and he asked the court to set deadlines for
completing discovery and filing amended pleadings. Id. at 1. The court ordered
the parties to complete discovery by August 31, 2022, and ordered that if the
plaintiff wanted to file an amended pleading, he must do so by September 30,
2022. Id. The September 30, 2022 deadline passed, and the plaintiff did not file
an amended pleading or ask for additional time to do so.
On October 12, 2022, the court held another status conference. Dkt. No.
75. The plaintiff’s counsel informed the court “that he had drafted an amended
complaint” and “that he would be ready to file the amended complaint in a

2

week or two.” Id. at 1. He told the court “that the amended complaint would
clarify the parties in the case and the claims.” Id. The court imposed a deadline
of October 24, 2022 by which the plaintiff must file a motion for leave to file an
amended complaint and a proposed second amended complaint. Id. at 1–2. The
court explained that the motion for leave to amend was necessary “because the
deadline to file amended pleadings had passed.” Id. at 1.
At the October 24, 2022 deadline, the court received from the plaintiff his
motion for leave to amend the complaint and the proposed second amended
complaint. The proposed second amended complaint added four new
defendants—the Milwaukee County Department of Health and Human
Services, Behavioral Health Services Division (MHHS); Steven Bradford; Margie
Burton and Dr. Larry Sprung. Dkt. Nos. 76, 76-1. The defendant opposed the
motion for leave to amend. Dkt. No. 77. The court held a status conference on
November 10, 2022 to discuss the motion. Dkt. No. 80. The court noted that
the proposed second amended complaint “named four new defendants and
sued all the defendants in their official capacities.” Id. at 1. The court explained
that it would construe the new claims against the new defendants in their
official capacities as if the plaintiff had alleged those claims against Milwaukee
County, but concluded that the proposed second amended complaint failed to
state a claim against Milwaukee County because it did not “establish that there
was an official policy or procedure that was the cause of [the plaintiff’s]
constitutional injury.” Id. The court denied the plaintiff’s motion for leave to file
the proposed second amended complaint. Id. But the court gave the plaintiff “a
final opportunity to seek leave to file a third amended complaint.” Id. at 1–2.
The court ordered that if the plaintiff wanted to take advantage of that
opportunity, by November 21, 2022 he must file a motion for leave to file a

3

third amended complaint. Id. at 2. It ordered the defendant to file her
opposition by December 2, 2022, and ordered that if the plaintiff chose to file a
reply, he must do so by December 9, 2022. Id.
At the November 21, 2022 deadline, the court received from the plaintiff
a motion for leave to file an amended complaint and a proposed third amended
complaint. Dkt. Nos. 81, 81-1. On December 2, 2022, the defendant filed a
brief in opposition, dkt. no. 82, and the plaintiff filed his reply on December 9,
2022, dkt. no. 83.
II.

Motion for Leave to File a Third Amended Complaint (Dkt. No. 81)
Federal Rule of Civil Procedure 15 states that “[a] party may amend its

pleading once as a matter of course within” twenty-one days of service or
within twenty-one days after service of a responsive pleading. Fed. R. Civ. P.
15(a)(1). The plaintiff’s twenty-one days to amend “as a matter of course”—
without the court’s permission—expired in the summer of 2020, when the
defendant filed her answer. Rule 15(a)(2) allows a party to amend “only with the
opposing party’s written consent or the court’s leave.” The rule instructs courts
to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). District
courts have the discretion to allow amendment and may deny the request
because of “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
A.

The Proposed Third Amended Complaint (Dkt. No. 81-1)

The third amended complaint names four defendants, one of whom is the
original defendant (Sanchez) and three of whom are the same individuals the
plaintiff sought to add in the second amended complaint: Bradford, Burton and

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Sprung. Dkt. No. 81-1 at 1. It alleges that the defendants worked at and for the
MHHS at all relevant times. Id. at 2. The third amended complaint names the
defendants “in their personal capacities for their actions undertaken and
pursued under color of law.” Id.
The third amended complaint alleges that on September 9, 2016, the
plaintiff was in custody at the MHHS “in an official status of involuntary
emergency detention, based upon his conduct and behavior prior to his arrival
and throughout his presence at that medical and health care facility.” Id. at 3.
It alleges that the defendants “conducted initial, subsequent, and continuing
visual assessments and physical evaluations of the emotional, psychiatric, and
mental condition of the Plaintiff.” Id. It alleges that the defendants performed
these assessments and evaluations “[p]ursuant to the psychiatric crisis
services protocols and practices of that medical and health care facility.” Id.
The third amended complaint alleges that based on the assessments,
Dr. Sprung directed unspecified MHHS security staff to move the plaintiff from
the general patient population “to an adjacent seclusion room.” Id. Security
staff moved the plaintiff to the seclusion room and placed him in restraints and
on a bed. Id. The plaintiff alleges that he “was completely calm, fully
cooperative, and unconditionally compliant with the security staff and with the
Defendants.” Id. Staff wanted to inject the plaintiff with a psychiatric medicine
called Geodon, but the plaintiff told the defendants he is allergic to that
medication. Id. at 3–4. Sprung changed the order for the administration of
medication to Haldol and Benadryl. Id. at 4. Given that order and directive,
Bradford “physically administered intravenous injections of the psychiatric
medicines Haldol and Benadryl to the Plaintiff.” Id. The third amended
complaint alleges that Bradford completed the injection “in the presence and

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with the involvement of Defendants Margie Burton and Alicia Sanchez, among
others.” Id.
The plaintiff alleges that he did not consent to the administration of
Geodon, Haldol or Benadryl. Id. The third amended complaint alleges that,
before the injection, the plaintiff “plainly and unconditionally stated, expressed,
and otherwise made clear and unmistakable his objection and opposition to the
administrations of any psychiatric medicines.” Id. It alleges that the injection of
the medication was “medically unwarranted and diagnostically unjustified” and
that the defendants “were fully aware and completely informed” that the
plaintiff objected to the injection. Id. The plaintiff allegedly “suffered severe
physical reactions and irritating systemic responses in the nature of headache
and body aches, pain and constriction of joints, limb soreness and discomfort,
and other, similarly unpleasant, troublesome, and harsh ailments, sicknesses,
and disorders.” Id. at 5. Shortly after, members of the Milwaukee County
Sheriff’s Office arrested the plaintiff and took him into their custody; he was
later charged in state court with disorderly conduct. Id.
The third amended complaint asserts that the defendants administered
Haldol and Benadryl without the plaintiff’s consent and “absent adequate or
sufficient medical justification and diagnostic support.” Id. It claims that the
defendants violated the plaintiff’s right “to be free of intrusions into his
physical body and interferences with his lawful discretion to make decisions
about his medical health, care, and treatment” under the Fourteenth
Amendment. Id. The plaintiff seeks judgment in his favor and compensatory
damages. Id. at 6.

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B.

The Parties’ Positions
1.

The Plaintiff (Dkt. No. 81)

The plaintiff asserts that the third amended complaint is based on the
same “long-standing, core series of facts and circumstances related to his
presence at the MMCH on September 9, 2016.” Dkt. No. 81 at 9. He contends
that the third amended complaint provides “a detailed rendition of his account
of his engagements and interactions with members of the medical staff of that
medical and health care facility.” Id. The plaintiff reiterates that the third
amended complaint’s biggest change is the addition of the three new
defendants, whom he alleges “acted in their personal capacities under color of
law in the collaborative decision to administer and the actual administration of
intravenous psychiatric medicines.” Id.
The plaintiff says he identified the additional defendants through “the
conduct, exchange, and pursuit of pretrial discovery, both documentary and
oral, both before and since the time of the appointment of counsel.” Id. He
asserts that adding the new defendants “accomplishes no material redirection
or expansion of the seminal facts and circumstances upon which this civil
litigation has proceeded to date and, to that end, seeks the same relief in the
form of monetary damages allegedly incurred through violations of the civil
rights provisions and concepts as he has invoked them previously.” Id.
The plaintiff asserts that the third amended complaint relates back to the
original complaint under Rule 15(c) because it “asserts a claim or defense that
[arises] out of the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading.” Id. at 10 (internal quotations omitted;
emphasis in original). The plaintiff concedes that his efforts to amend the
complaint have been delayed or deficient, and he admits that the newly named

7

defendants “may suffer from some measure of prejudice in that delay.” Id. But
he attributes the delay to the plaintiff’s previous self-represented status, rather
than to “bad faith or dilatory motive.” Id. (quoting Fed. R. Civ. P. 15(a)).
The plaintiff alternatively contends that his failure to identify the three
new defendants earlier “is, in fact, the product of the very type of ‘mistake’ that
Subsection (c) of the Rule contemplates.” Id. at 11. The plaintiff notes that in
his 2020 deposition, he revealed that he “was much aware of and
communicatively engaged with all of the medical staff he has now identified by
their names in his amended pleading.” Id. He says that discovery and
defendant Sanchez’s deposition further “revealed and memorialized” their
involvement in the events of September 9, 2016. Id. The plaintiff contends that
he did not “lack[] knowledge of the proper defendants” but instead “made ‘a
deliberate but mistaken choice’” about who to sue. Id. (quoting Krupski v.
Costa Crociere S.p.A, 560 U.S. 538 (2010)). He explains that this “mistake” is
why he identified Sanchez, but not Bradford, as “the person who actually
injected him with the psychiatric medicines.” Id. The plaintiff says the third
amended complaint “embodies not a ‘new action’ but one already in existence—
seeking remedial relief on precisely the same causes of action as set forth in
the very first complaint,” so the court should toll the six-year statute of
limitations. Id. at 12 (citing Wis. Stat. §893.13(2)).
2.

The Defendant (Dkt. No. 82)

The defendant opposes the plaintiff’s motion. Dkt. No. 82. The defendant
asserts that “the statute of limitations has already elapsed as to th[e new]
defendants making any amendment of the Complaint futile.” Id. at 1. She
refers the court to her response to the plaintiff’s previous motion for leave to
amend the complaint, Dkt. No. 77. Id. The previous response asserted that the

8

plaintiff’s proposed second amended complaint, which he filed on October 24,
2022, was filed more than six years after the alleged incident date of September
9, 2016 and thus arguably was untimely filed. Dkt. No. 77 at 4. The defendant
noted that the plaintiff might try to argue for tolling of the statute of limitations
under Wis. Stat. §893.13(2). Id. The defendant agreed that the plaintiff’s
“claims in his amended complaint arise out of the same incident described in
original complaint.” Id. at 5. But the defendant asserted that §893.13(2) applies
“only to an action already in existence, not a ‘subsequently filed new action
arising out of the same transaction as a previous case but seeking relief on
different causes of action.’” Id. (quoting Dasko v. Kendziorski, 568 N.W.2d 321
(Table), 1997 WL 52993, at *1 (Wis. Ct. App. Feb. 11, 1997)). The defendant
contended that any claims in the third amended complaint that the plaintiff
“brings against new Defendants who were not named in Plaintiffs’ prior suit are
new causes of action,” so they are not entitled to tolling. Id.
The defendant also asserted that the claims against the new defendants
cannot relate back to the original complaint under Federal Rule of Civil
Procedure 15. Id. The defendant contended that relation back is permitted only
when “‘the defendant who is sought to be added by the amendment knew or
should have known that the plaintiff, had it not been for a mistake, would have
sued him instead or in addition to suing the named defendant.’” Id. at 6
(quoting Joseph v. Elan Motorsports Techs. Racing Corp., 638 F.3d 555, 559–
60 (7th Cir. 2011)). The defendant contended that this provision does not apply
when the plaintiff sues John Doe defendants or “when the plaintiff ‘simply
lacks knowledge of the proper defendant.’” Id. (quoting Hall v. Norfolk S. Ry.
Co., 469 F.3d 590, 596 (7th Cir. 2006)). The defendant asserted that the
plaintiff’s failure to name the new defendants before the statute of limitations

9

elapsed “was not a mistake in their identities but rather his not knowing that
those defendants allegedly harmed him. Consequently, those claims do not
relate back and are time barred.” Id. at 7.
The defendant adds in her latest response that the plaintiff concedes
both he and/or his recruited counsel “had access to, and w[ere] in possession
of his own medical records since shortly after he filed this suit,” and those
records identified the proposed new defendants. Dkt. No. 82 at 2. The
defendant asserts that that knowledge undermines the plaintiff’s position that
his “choice not to name them in the suit, even if they were aware of such a suit,
was because he made some mistake as to their identity or the role that they
played in his care.” Id. The defendant asserts that it would unfairly prejudice
the new defendants if the court were to excuse the plaintiff’s failure to name
them earlier and allow him to proceed on the third amended complaint. Id. at
3.
The defendant argues that the court also should deny the motion for
leave to amend because the amendment would be futile. Id. The defendant says
the facts pleaded in the third amended complaint “show no active role by the
proposed new defendants in any deprivation of [the plaintiff’s] constitutional
rights.” Id. She characterizes the third amended complaint as alleging that
Bradford, not Sanchez, injected the plaintiff with the medication against his
will, and asserts that “[a]t best, [the plaintiff] might state a claim against
Bradford but not against any of the other proposed defendants, including
Sanchez.” Id. She contends that the other new defendants were merely
“present” but alleges “no facts” about their actions that violated the plaintiff’s
constitutional rights. Id.

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III.

Analysis
A.

Timeliness and Tolling Under State Law

The relevant statute of limitation for cases brought under §1983 is “the
statute of limitations for personal injuries supplied by the state in which the
claim arose.” Huber v. Anderson, 909 F.3d 201, 207 (7th Cir. 2018) (citing
Wallace v. Kato, 549 U.S. 384, 387 (2007)). The limitation period for §1983
actions arising in Wisconsin before 2018 is six years. Id. (citing Wis. Stat.
§893.54 (2016)). Both the original complaint and the third amended complaint
identify September 9, 2016 as the date on which the events that led to this
case occurred. Dkt. No. 1 at 4; Dkt. No. 81-1 at 2. That means the plaintiff had
six years—until September 9, 2022—to file a lawsuit against the defendants for
allegedly forcibly medicating him on September 9, 2016.
In addition to limitation periods, “federal courts must also apply a forum
state’s applicable tolling rules for purposes of Section 1983.” Holifield v.
Rivamonte, No. 22-cv-0742-BHL, 2022 WL 2713697, at *1 (E.D. Wis. July 13,
2022) (citing Milchtein v. Anderson, No. 19-cv-1834-JPS, 2020 WL 6287702, at
*10 (E.D. Wis. Oct. 27, 2020)). Under Wisconsin law, the limitation period “for
commencement of an action is tolled by the commencement of the action to
enforce the cause of action to which the period of limitation applies.” Wis. Stat.
§893.13(2). The limitation period remains tolled “until the final disposition of
the action” plus an additional thirty days. Id. §§893.13(1)–(3); see Holifield,
2022 WL 2713697, at *1 (“[A]t the very least, when a plaintiff commences a
Section 1983 case in federal court, [the applicable] limitation period is tolled for
the length of the action plus 30 days.”).
But there is a caveat to those tolling rules. Under Wis. Stat. §893.02, “an
action is commenced, within the meaning of any provision of law which limits

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the time for the commencement of an action, as to each defendant, when the
summons naming the defendant and the complaint are filed with the court.”
This means that under Wis. Stat. §893.13, the six-year limitation period of
§893.54 is tolled “only as to the defendants who were actually defendants in
the” pending suit because they are the only defendants against whom the
plaintiff “commenced” a lawsuit. Hewitt v. Nygen, No. 16-cv-1481-LA, 2018 WL
2100303, at *2 (E.D. Wis. May 7, 2018).
The original complaint names as defendants Sanchez, Jane and John
Doe Nurses at St. Francis Hospital (not at MHHS), known and unknown
Milwaukee County Sheriff’s Deputies, various attorneys, a state court judge
and others. Dkt. No. 1 at 1. Defendants Bradford, Burton and Sprung are not
named as defendants in the original complaint. The original complaint
mentions Bradford in a passing allegation but does not name him as a
defendant. The complaint alleges that Milwaukee County Sheriff’s Deputies
“met with ‘Steven (Bradford)’, another registered nurse. He reported that he
‘overheard [the plaintiff] tell someone over the (phone) that he planned to buy
a[n] AK47 and come back and shoot this place up.” Dkt. No. 1 at 4. The
complaint alleges that the plaintiff “was ultimately given an ‘intramuscular
injection in an effort to (calm) Him down. He was physically restrained. ‘Sheriff
Deputies’ ultimately intervened’ and (transported) him to the Jail.” Id. The
complaint does not identify who injected the plaintiff and provides no other
details about the injection.
Because the original complaint does not name any of the three new
defendants named in the third amended complaint, the limitation period for the
claims against those defendants elapsed on September 9, 2022. The limitation
period was not tolled under Wis. Stat. §893.13 “because the plaintiff did not

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‘commence’ an action against the individuals who were not defendants in the
[original complaint], and thus he c[an]not use the tolling statute to save his
claims against those defendants.” Hewitt, 2018 WL 2100303, at *2 (internal
citation omitted). That means the third amended complaint is timely only
against the defendants named in the original complaint. Of the defendants
named in the original complaint, only Sanchez is named in the third amended
complaint. The third amended complaint is untimely as to any allegations
against defendants Bradford, Burton and Sprung.
B.

Relation Back Under Fed. R. Civ. P. 15(c)

The plaintiff asserts that even if he did not file the third amended
complaint within the six-year limitation period, the third amended complaint
relates back to the original complaint. Federal Rule of Civil Procedure 15(c)
provides that, “An amendment to a pleading relates back to the date of the
original pleading” in one of three circumstances. Fed. R. Civ. P. 15(c)(1). The
relevant circumstance is listed in Rule 15(c)(1)(C), which provides for relation
back when a proposed amendment “changes the party or the naming of the
party against whom a claim is asserted.” Under that rule,
an amendment to a pleading that “changes the party or the naming
of the party against whom a claim is asserted” relates back to the
date of the original pleading so long as: (1) the amendment asserts
a claim or defense arising out of the same conduct, transaction, or
occurrence as the original complaint; (2) “within the period provided
by Rule 4(m),” the party added by amendment “received such notice
of the action that it will not be prejudiced in defending on the
merits”; and (3) the added party “knew or should have known that
the action would have been brought against it, but for a mistake
concerning the proper party’s identity.”
Herrera v. Cleveland, 8 F.4th 493, 496 (7th Cir. 2021) (quoting Fed. R. Civ. P.
15(c)(1)(C) (emphasis omitted)). The parties agree that the third amended
complaint arises from the same “conduct, transaction, or occurrence” as the

13

original complaint. The question is whether the three additional defendants in
the third amended complaint had adequate notice of this lawsuit and whether
they “knew or should have known that the action would have been brought
against [them], but for a mistake” about their identity.
The court finds no basis to conclude that any defendant besides Sanchez
had notice of this lawsuit. It is undisputed no other defendant ever was served
with the complaint or the amended complaint; only Sanchez was served with
the amended complaint in July 2020. The plaintiff concedes that the new
defendants would be prejudiced if the court allowed him to proceed on the
third amended complaint. Dkt. No. 81 at 10; Dkt. No. 83 at 2–3. The other
MHHS defendants may remember the events of September 9, 2016, but there is
no indication that any of them knew or should have known of this lawsuit or
that they could or should have been named as a defendant merely because
Sanchez was named as a defendant, when the plaintiff filed his complaint
nearly two years after that incident.
Nor is there a basis to conclude that the other defendants knew or
should have known that they would have been defendants in this case but for
the plaintiff’s mistake in identifying them. The Seventh Circuit has clarified
“that Rule 15(c)’s ‘mistake’ clause does not apply when the plaintiff ‘simply
lacks knowledge of the proper defendant.’” Herrera, 8 F.4th at 496–97 (quoting
Hall, 469 F.3d at 596). That court explained that “‘[a] plaintiff’s ignorance or
misunderstanding about who is liable for his injury’ does not satisfy Rule
15(c)’s mistake requirement.” Id. at 497 (quoting Hall, 496 F.3d at 596). This
same reasoning applies where a complaint names as a defendant an unknown,
John Doe party. Id. (quoting Hall, 496 F.3d at 596) (“[A] plaintiff naming a John
Doe defendant ‘because he does not know who harmed him’ is not a mistake

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under Rule 15(c).”). The Seventh Circuit noted that recent Supreme Court
precedent had cast doubt over that conclusion, id. at 497–98 (discussing
Krupski, 560 U.S. 538); but the court of appeals reaffirmed in Herrera “that
naming a John Doe defendant does not constitute a ‘mistake’ within the
meaning of Rule 15(c)(1)(C)(ii).” Herrera, 8 F.4th at 498. The court instead
concluded that “suing a John Doe defendant is a conscious choice, not an
inadvertent error.” Id. at 499 (quoting Winzer v. Kaufman Cty., 916 F.3d 464,
471 (5th Cir. 2019) (affirming a grant of summary judgment on statute of
limitations grounds because “[f]ailing to identify individual defendants cannot
be characterized as a mistake”)).
Another court in this district recently confronted this issue in a similar
case, where a plaintiff brought a §1983 case against defendants whose
identities he did not know. Domzil v. Jeuck, No. 20-CV-1747-BHL, 2021 WL
5866703, at *1 (E.D. Wis. Dec. 10, 2021). The plaintiff’s injury occurred on
November 21, 2017 and he filed his complaint on November 22, 2020. Id. The
complaint named numerous John and Jane Does, but on April 16, 2021, the
plaintiff amended his complaint to identify five persons who were responsible
for his injury. Id. The court found that the amended complaint identifying the
Doe defendants “does not relate back to the original pleading under Fed. R. Civ.
P. 15(c) because it is not a ‘mistake.’” Id. (citing Herrera, 8 F.4th at 498–99).
The court granted the defendants’ motion for judgment on the pleadings and
dismissed the defendants identified in the amended complaint because the
amended complaint was filed beyond the applicable three-year statute of
limitations. Id.
Here, the plaintiff was required to identify the defendants he wanted to
sue by September 9, 2022. The only MHHS defendant he identified by that

15

deadline was Sanchez. The plaintiff did not name any other MHHS defendant
in his original or first amended complaint and did not sue any John or Jane
Doe defendants who worked at MHHS. The plaintiff mentioned Bradford in the
original complaint but did not name Bradford as a defendant or allege any
misconduct by Bradford. Even if he had, the court never ordered service of the
original complaint on any defendant. The court ordered service only of the
plaintiff’s first amended complaint, dkt. no. 21, and it ordered service only on
Sanchez because she is the only defendant named in the amended complaint.
The first amended complaint does not identify or mention any other person by
name or as a John or Jane Doe defendant. That reflects either a conscious
choice by the plaintiff to sue only Sanchez or a failure to identify who else
might be liable to him. Neither of those situations constitutes a “mistake”
under Rule 15(c). See Herrera, 8 F.4th at 496–97; Hall, 469 F.3d at 596;
Winzer, 916 F.3d at 471.
The plaintiff argues that his misnaming of Sanchez as the only defendant
in his amended complaint was a “mistake” under Rule 15. But as explained
above, the plaintiff mentioned Bradford in his original complaint, which shows
that he knew that other persons were involved in the September 9, 2016
incident and failed to name them (even as John Does) in his amended
complaint. The plaintiff also had access to his medical records for years before
the statute of limitations lapsed. The defendant says that those “records
outlined the proposed new defendants’ participation in his care,” so the
plaintiff could have identified them much earlier in this litigation. Dkt. No. 82
at 2. Even if the defendants were not identified by name in the records, the
plaintiff could have filed an amended complaint naming John or Jane Doe
defendants against whom he wanted to proceed, like he did in his original

16

complaint.1 The plaintiff gives no reason why he could not have examined his
records and filed a timely second amended complaint naming the additional
defendants, either by name or with a Doe placeholder, between either August
19, 2020 (when the parties began discovery) or March 30, 2022 (by which time
plaintiff’s counsel says he had reviewed all pretrial discovery) and when the
statute of limitations elapsed on September 9, 2022. Rather than making a
mistake about who he wanted to sue, the plaintiff failed to file a second or third
amended complaint naming them in time.2
The plaintiff alternatively points to his previous self-represented status to
explain his failure to identify the proper defendants within the six-year
limitation period. But the plaintiff was represented by counsel for nearly ten
months before the September 9, 2022 filing deadline elapsed. The court
recruited counsel on December 8, 2021, the plaintiff agreed to counsel’s
representation five days later and counsel filed his notice of appearance on
January 24, 2022. Dkt. Nos. 63, 64, 68. The plaintiff’s counsel told the court
during the March 30, 2022 status conference that he had reviewed the
discovery materials and asked for time to conduct additional discovery and file
amended pleadings. Dkt. No. 73. The court gave the parties a deadline of
August 31, 2022 by which to complete discovery plus an additional month for
the plaintiff to file an amended pleading. Id. at 1. That means the plaintiff had

The plaintiff still would have had to identify those Doe defendants by
September 9, 2022. Herrera, 8 F.4th at 499.
1

On August 24, 2020, the plaintiff moved to amend his complaint again
because he “determined” that the amended complaint was “lacking detail.” Dkt.
No. 31. But the proposed second amended complaint still named only Sanchez
as the defendant. Dkt. No. 31-1. Magistrate Judge Nancy Joseph, to whom the
court had referred the case for pretrial management, denied the plaintiff’s
motion. Dkt. No. 32.
2

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the assistance of counsel in conducting additional discovery and preparing an
amended pleading for over five months before the statute of limitations
elapsed—from March 30, 2022 through September 9, 2022. The plaintiff did
not file an amended pleading and did not request additional time to do so until
the October 12, 2022 status conference, during which the plaintiff’s counsel
told the court that he “he had drafted an amended complaint” that he would
file “in a week or two.” Dkt. No. 75. Counsel has not explained why he did not
file, and could not have filed, the amended complaint by September 9, 2022.
The plaintiff’s proposed amendment would be proper only against
defendant Sanchez because she is the only defendant whom the plaintiff timely
sued and who knew or should have known about this lawsuit within the sixyear statute of limitations. The court must determine whether to allow the
amendment against Sanchez and whether to allow the plaintiff to proceed on
the third amended complaint, rather than on the first amended complaint.
C.

Amendment Under Rule 15(a)

Rule 15(a) provides that a “court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). But as the court noted above, it may deny a
request to amend a pleading for several reasons, including “undue delay . . .
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman, 371 U.S. at 182.
The court finds that allowing the plaintiff to amend and proceed on the
third amended complaint would be futile because it fails to state a plausible
claim against Sanchez. The third amended complaint alleges that Dr. Sprung
ordered the injection of Haldol and Benadryl into the plaintiff, that Bradford
injected those medications into the plaintiff following Sprung’s order and then

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performed the injection on the plaintiff “in the presence and with the
involvement of” Burton and Sanchez. Dkt. No. 81-1 at 4. That is the only
allegation tying Sanchez to the allegedly unlawful injection that forms the basis
of the plaintiff’s Fourteenth Amendment claim. But an allegation that Sanchez
was present and somehow involved in the forced medication, without any detail
or elaboration, does not state a plausible claim for relief against her. At most,
this allegation suggests that Sanchez possibly assisted in some way that could
have violated the plaintiff’s rights. But it fails to allege what her specific
involvement was. Did she hold the plaintiff still? Did she prepare the injection
site or needle? Did she fail to take a reasonable opportunity to prevent the
forced medication? The third amended complaint does not say.
The third amended complaint also alleges that all four defendants, and
other unnamed “medical or health care providers, conducted initial,
subsequent, and continuing visual assessments and physical evaluations of
the emotional, psychiatric, and mental condition of the Plaintiff . . . [p]ursuant
to the psychiatric crisis services protocols and practices of that medical and
health care facility.” Dkt. No. 81-1 at 3. The plaintiff suggests that that
allegation of a “collaborative” effort between the defendants is sufficient to state
a claim against Sanchez. Dkt. No. 83 at 4. It is not. Conducting “visual
assessments” of the plaintiff as part of his treatment at a health care facility
did not violate his rights. Failing to conduct proper assessments might be a
basis for relief, but that is not what the third amended complaint alleges. This
vague allegation that the defendants collectively “engaged in certain acts [that]
deprived [the plaintiff] of his constitutional rights . . . does not adequately
connect specific defendants to illegal acts” sufficient to state a plausible claim

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against any individual defendant. Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.
2009).
To proceed beyond screening, the proposed amended complaint must
allege enough to state a plausible—not just possible—claim for relief.
See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because counsel prepared and
filed the third amended complaint, the court is not required to liberally
construe the third amended complaint as it must when an unrepresented
plaintiff prepares and files a pleading. See Erickson v. Pardus, 551 U.S. 89, 90
(2007) (citing Estelle v. Gamble, 429 U.S. 97, 104–105 (1976)). Alleging that
Sanchez was “present and involved” does not provide enough detail about her
specific and personal involvement in the alleged violation of the plaintiff’s rights
to state a plausible claim. The third amended complaint alleges less against
Sanchez than the amended complaint, which alleges that Sanchez was the
person who injected the plaintiff with the medication. Dkt. No. 18 at 2–3.
Allowing the plaintiff to proceed on the third amended complaint would
unduly prejudice the new defendants, whom the plaintiff could have added
months earlier. The plaintiff also has repeatedly failed to cure the deficiencies
in his complaint and name all proposed defendants, despite the court giving
him opportunities to do so. The plaintiff’s first amended complaint was timely,
but it named only Sanchez as a defendant. That amended complaint does not
allege any other defendants’ involvement in the events from September 9, 2016.
The plaintiff filed a proposed second amended complaint on his own, but the
court denied it as unnecessary and improper. Dkt. No. 32. The court then gave
the plaintiff—this time represented by counsel—a deadline of September 30,
2022 by which to file a proposed second amended complaint. He did not file
one until October 24, 2022—after the court again extended his deadline to file

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it—and the proposed second amended complaint did not state a proper claim
against any defendant, timely or otherwise.
The court concludes that it would not be proper to allow the plaintiff to
proceed on the third amended complaint. The court will deny his motion for
leave to amend.
IV.

Final Comment
On April 17, 2023, the court received a letter from the plaintiff himself,

expressing concern that his appointed counsel did not want the plaintiff to
communicate directly with the court (either by visiting or by writing). Dkt. No.
84. The plaintiff indicated that he believed his counsel’s conduct was
suspicious and indicated that he wanted to make the court aware of his
concerns.
To the extent that the plaintiff’s lawyer has cautioned the plaintiff not to
communicate directly with the court, he is simply advising the plaintiff of what
the law in this circuit says. The Seventh Circuit Court of Appeals—whose
decision this district court must follow—has held that a person who is
represented by a lawyer “relinquishes the right to file his own pro se
submissions.” United States v. Khatib, 606 F. App’x 845, 847 (7th Cir. 2015)
(citing United States v. Williams, 495 F.3d 810, 813 (7th Cir. 2007)). See also,
United States v. Mosley, 353 F. App’x 49, 52 (7th Cir. 2009) (a person
represented by counsel “does not have the right to file his own pro se
submissions”).
The plaintiff began asking this court to appoint him a lawyer at the time
he filed the case back in April 2018. He asked more than once. More than once,
Judge Joseph and this court explained to the plaintiff that there are not
enough volunteer lawyers to represent every incarcerated person who asks to

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have an attorney appointed. The court agreed to appoint counsel for the
plaintiff on November 10, 2021; it took almost a month to find someone willing
to assist him. The person who volunteered is an experienced lawyer who has
spent considerable time working with the plaintiff and working on the case. He
came on board after many events already had occurred—events that he had no
part in or control over—including earlier attempts to amend the complaint.
The court suspects that some of the reason for the plaintiff’s concern is
that at the time he wrote his letter, it had been some five months since the last
court hearing. Some of the delays in this case have been because of the court’s
docket; it has many cases other than the plaintiff’s (and at one point, the
plaintiff had four cases going at the same time, all before this court). The court
wants to act more quickly than often it is able.
The court hopes that the plaintiff and his attorney have worked through
any misunderstandings. Although it is difficult, the court encourages the
plaintiff to be patient and to try to cooperate with his lawyer. His lawyer chose
to accept this case—he was not required to. While not every lawyer is the right
fit for every client, the fact that there are disagreements here and there does
not mean that the attorney and the client cannot find a way to work together
for the client’s benefit.
V.

Conclusion
The proposed third amended complaint is timely only against defendant

Alicia Sanchez and does not relate back to the original complaint under Federal
Rule of Civil Procedure 15(c). It would be futile to allow the amendment
because the third amended complaint does not state a claim against Sanchez.
It would be improper to allow the plaintiff to amend because the plaintiff

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repeatedly failed to cure the deficiencies in his complaint and allowing the
amendment would unduly prejudice the defendants.
The court DENIES the plaintiff’s motion to amend his complaint and file
the proposed third amended complaint. Dkt. No. 81. The amended complaint
(Dkt. No. 18) remains the operative complaint in this case.
The court will enter a separate order setting deadlines for the parties to
file dispositive motions on the merits of the plaintiff’s claims.
Dated in Milwaukee, Wisconsin this 11th day of June, 2023.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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