Shaw v. Jahnke

Filing 40

ORDER directing plaintiff to show that he has filed a notice of claim per Wis. Stat. § 893.82(3m) by 7/27/09 or state law claim to be dismissed. Signed by Chief Judge Barbara B. Crabb on 7/20/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------S ER G IO L. SHAW, ORDER Plaintiff, 0 8 - cv -2 4 5 - b b c v. T H O M AS JAHNKE, Dodge Correctional Officer, D efendan t. --------------------------------------------Plaintiff Sergio Shaw has submitted a proposed amended complaint within the deadlin e set forth in the magistrate judge's scheduling order. Dkt. #38. Under 28 U.S.C. § 1915, this court must screen the amended complaint to determine whether it states a claim upon which relief may be granted. After screening plaintiff's original complaint, I allowed him to proceed on a claim un der the Eighth Amendment that defendant Thomas Jahnke used excessive force against him on July 20, 2007 by causing him to fall on the ground, punching him in the face three tim es and restricting his ability to breathe. The only substantive difference between the o rigin al complaint and the amended complaint is that plaintiff includes a state law claim for

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battery in the new complaint. The problem with this claim is that plaintiff does not allege that he filed a notice a claim in accordance with Wis. Stat. § 893.82(3m), which says that " a prisoner may not commence the civil action or proceeding [against a public employee] un til the attorney general denies the claim or until 120 days after the written notice . . . is s erved upon the attorney general, whichever is earlier." See also Ibrahim v. Samore, 118 W is.2d 720, 726, 348 N.W.2d 554, 558 (1984) ("The notice of injury statute is not a statute of limitation but imposes a condition precedent to the right to maintain an action."). A cco rdingly, IT IS ORDERED that plaintiff Sergio Shaw may have until July 27, 20 09 , to show that he has complied with Wis. Stat. § 893.82(3m). If plaintiff fails to respo nd by that date, I will dismiss the state law claim. E n tered this 20 t h day of July, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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