Fortney v. Hoffman et al

Filing 22

ORDER that no consideration will be given to plaintiff's supplements to the complaint. Plaintiff advised of procedures for amending the complaint and obtaining the identities of the unknown defendants. Signed by Chief Judge Barbara B. Crabb on 6/3/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------S T EV EN E. FORTNEY, ORDER Plaintiff, 0 9 -c v -1 9 2 -s lc v. W IL L IA M POLLARD, G.B.C.I Warden; U N K N O W N MEMBERS OF TWO EX T R A C T IO N TEAMS; and UNKNOWN N U R S E on 2/11/09 in H.S.U., D efendan ts. --------------------------------------------O n April 24, 2009, I screened plaintiff's complaint and found that he stated claims again st defendants Unknown Members of Two Extraction Teams and Unknown Nurse on 2 /1 1 /0 9 in H.S.U. for alleged violations of his Eighth Amendment rights. Dkt. #9.

Although plaintiff failed to state a claim against defendant William Pollard, I explained that Po llard would not be dismissed from the case because he could assist in determining the identities of the unknown defendants. Further, I explained that plaintiff could not submit an amended or supplemental complaint that consisted of a combination of several d ocu m e nts because such a submission would violate Fed. R. Civ. P. 8 by prejudicing

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d efe n d a n ts . Dkt. #9 at 12-13. If plaintiff were allowed to submit a combination of d ocu m e nts as his complaint, defendants "would not know the exact nature of the allegations again st them and would not know how to respond." Id. at 13. Although it is not entirely clear from the documents, it appears that plaintiff has su bm itted several additional "supplements" to his complaint. Dkt. ##13 & 16. I will not co n sid er plaintiff's "supplements." His original complaint remains the operative pleading in this case. Instead, plaintiff should read this order carefully and follow its instructions if he wishes to file a proposed amended complaint. As I previously said: the complaint in this case may be one document only. This means that if plaintiff wants to amend his complaint he needs to file one document as a proposed amended complaint. A complaint cannot be a m ov ing target that is continually changing as plaintiff files new supplements or amendments. S u ch a complaint would prevent defendants' from knowing the allegations they must defend against. M oreo ver, to allow the court and defendants to understand the changes plaintiff desires to make, the document must conform to the following format: it should include exactly the same allegations found in his original complaint with lines through any allegatio ns or parties that he wants omitted; any newly included allegations or parties should be highlighted. Further, plaintiff should not write in the margins of the document because it makes it hard to know what the margin notes pertain to. Finally, I encourage plaintiff to

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w ait until after he obtains the names of the unknown defendants before filling any proposed am ended complaint. Once he obtains the names, he must file a proposed amended

com plaint to insert those names in place of all references to unknown defendants. W ith respect to the unknown defendants, plaintiff has filed documents with the court related to his attempts to seek responses from defendant Pollard about the identities of the unknow n defendants. The normal procedure in this court is as follows: at the preliminary pretrial conference Magistrate Judge Stephen Crocker will set a deadline for plaintiff to seek discovery from the defendant who remained a party for the purpose of helping plaintiff to obtain the identities of unknown defendants. Plaintiff can then ask this defendant for the correct names of the unknown defendants. Once he has those names, he can amend the

com plaint to reflect the proper identification.

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B y following the above procedure, plaintiff should be able to obtain the identities of un kn ow n defendants shortly after the preliminary pretrial conference. For now plaintiff sho uld refrain from contacting defendant Pollard about the identities of the unknown d efen dan ts. Both plaintiff and defendant Pollard will be advised about the procedures and tim e frames for discovering those identities at the preliminary pretrial conference. E n tered this 3r d day of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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