Fortney v. Hoffman et al

Filing 36

ORDER denying 29 Motion to Voluntarily Dismiss; denying 30 Motion to Amend Complaint. Plaintiff has until 7/8/09 to submit a proposed amended complaint. Preliminary pretrial conference set for 7/1/09 is canceled. Signed by Chief Judge Barbara B. Crabb on 6/18/09. (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, THOMAS CAMPBELL, T IM O T H Y GREIL, BENJAMIN GRAVES, MATTHEW FRIDDLE, DREW NIELSEN, R O B ER T PICKLE, MICHAEL RHOADES, CHRIS STEVENS, DAVID LONGSINE, JEREMY LEIRMO, LUKE FULLER, COLE COOPMAN, LARRY DILLENBERG, BRIAN V AN LOO, NURSE VANTERKINTER and NURSE LEMENS, D efendan ts. --------------------------------------------O n April 24, 2009, I screened plaintiff's complaint and found that he stated claims against the unknown members of two extraction teams and an unknown nurse for alleged vio latio n s of his Eighth Amendment rights. Dkt. #9. On June 2, 2009, a state assistant a t t o r n e y general filed a letter with the court, dkt. #23, providing the names of these un kn ow n defendants. I have amended the caption to reflect the names of these defendants. G enerally, once a plaintiff obtains the identities of unknown defendants he is required

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to amend his complaint and substitute the newly discovered names in place of the unknown d efen dan ts, after which the newly discovered persons would be served with the summons and complaint. However, plaintiff has advised the court that he would rather voluntarily dism iss this case and file a new complaint than amend his current complaint because he is havin g a difficult time complying with this court's procedures for amending a complaint. D k t. #27, 28 & 29. Plaintiff wants to "start over" or "start-a-new." Dkt. #29. From plaintiff's submissions, I understand that his new complaint would be similar and include m any of the same allegations found in his current complaint. Some of the changes would be to list previously dismissed defendants and the names of the previously unknown d efen dan ts and to provide new and altered allegations against all listed defendants. Granting plaintiff's motion for a voluntary dismissal would not relieve him of his obligation to con tinue paying the filing fee for the dismissed case. In addition, he would be required to pay a new filing fee for his newly filed case. Plaintiff's request for voluntary dismissal is further complicated in light of his most recent filings, which include a "proposed amended complaint," dkt. #30, and letter for an "a dditio nal" amendment, dkt. #32. As a general rule, it is inappropriate for plaintiff to file a n initial complaint and amend that complaint, and then add a communication later that m ak es one change, and another communication a week later making another change, and so on. A complaint cannot be a moving target. At some point, the complaint must be

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fin ish ed so that defendants know precisely what it is that they are being charged with doing an d what plaintiff wants as relief. T h erefo re, instead of granting plaintiff's request for a voluntary dismissal or his recent request to amend, I will allow plaintiff to essentially "start over" without having to pay an addition al filing fee. I will permit plaintiff to file one amended complaint that includes all the new allegations and new defendants as well as the old allegations and defendants without havin g to cross out omissions or highlight alterations from his original complaint. In other w ords, whatever new complaint plaintiff intended on filing in a new case and all the previous am endm ents he wanted to make to the complaint in this case, he may file as one amended com plaint in this case. P lain tiff should be aware that his amended complaint will undergo the same screening pro cess that his original complaint underwent, which could result in the dismissal of claims and defendants. Also, plaintiff will not be permitted to submit new amendments every day or week in the future. Moreover, as plaintiff writes his newest amended complaint I r e c o m m e n d that he keep the following rules in mind: (1) each allegation must be simple, concise and direct, Fed. R. Civ. P. 8(d)(1); (2) the complaint must provide a short and plan statem ent of his claims showing that he is entitled to relief, Fed. R. Civ. P. 8(a)(2); (3) all claim s must arise out of the same transaction, occurrence, or series of transactions or occu r r e n ce s, Fed. R. Civ. P. 20(2)(A); and (4) he should not write in the margins of his

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com plaint. Plaintiff will have until July 8, 2009 to file his amended complaint. Failure to file an amended complaint by this date will result in voluntary dismissal of this case. Any new filings for an amended complaint received between the time this order is mailed to plaintiff and the time plaintiff receives the order will be denied because I want plaintiff to have the benefit of the information in this order before filing his newest amended complaint. Fina lly, because plaintiff will be filing an amended complaint, it would be most efficient to cancel the currently scheduled preliminary pretrial conference scheduled for July 1 , 2009. Once plaintiff has filed his amended complaint, the court will screen the complaint and the proper defendants will be served. A new preliminary pretrial conference will be scheduled after the served defendants file their answer to the amended complaint.

OR DER IT IS ORDERED that: 1. Plaintiff Steven E. Fortney's motion for voluntary dismissal, dkt. #29, is DENIED; 2. Plaintiff's request to proceed on his proposed amended complaint, dkt. #30, is D E N IE D ; 3. Plaintiff may have until July 8, 2009, in which to submit a proposed amended com plaint. If by July 8, 2009, plaintiff fails to respond to this order, the clerk of court is directed to dismiss plaintiff's claims without prejudice and close this case;

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4 . The preliminary pretrial conference scheduled for July 1, 2009, is CANCELLED an d will be rescheduled at a later time. E n tered this 18t h day of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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