Watts, David v. Luell, Rick et al

Filing 57

ORDER that plaintiff may have until September 15, 2012, to submit a proposed supplement to his complaint more fully detailing his claims that defendants are failing to protect him from physical violence at the Dodge Correctional Institution. The stat e may have until September 30, 2012, to submit a response to this order explaining where plaintiff is currently housed and what has been done to protect him from physical violence. Signed by District Judge William M. Conley on 8/23/2012. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DAVID W. WATTS,
Plaintiff,
v.

OPINION and ORDER
10-cv-550-slc

DAN WESTFIELD and RICK RAEMISCH,
Defendants.

Plaintiff David Watts is proceeding in this case on his Eighth Amendment claims that
defendants Dan Westfield and Rick Raemisch of the Wisconsin Department of Corrections
failed to (1) protect him from harm at the Colorado prison to which he was transferred; and
(2) provide him with a CPAP machine for his sleep apnea. In a May 31, 2011 order, the
court denied Watts’s motion for preliminary injunctive relief because he was “unlikely to be
able to show defendants Westfield and Raemisch knew that after his transfer to Colorado
he remained in substantial risk of harm.” Dkt. #49. The court, however, noted that Watts’s
“allegations suggest that real danger may have followed [him] to Colorado,” stayed the case
and appointed attorney Jeff Costakos “for the limited purpose of examining the merits of
[Watts’s] claims and determining whether he wishes to take on Watts’s representation.” Id.
On September 23, 2011, attorney Costakos submitted a letter stating that after
reviewing the file and speaking with Watts over the phone and in person, he would not take
on the representation.

On September 28, 2011, Watts submitted a new motion for

preliminary injunctive relief.1 In this motion, Watts states that he is now incarcerated at the
Dodge Correctional Institution, located in Waupun, Wisconsin. He calls himself “a well
known confidential witness” and alleges that he has been beaten by other inmates and prison
staff, then denied medical care for injuries stemming from those beatings.
One of the main reasons the court appointed attorney Costakos to review the file was
that Watts’s confinement in Colorado would make it particularly difficult for him to
prosecute an action against Wisconsin defendants. Watts’s transfer to Wisconsin, coupled
with the fact that the first court-appointed attorney has chosen not to represent Watts, leads
the court to conclude that there is little reason to pursue further appointment of counsel in
this case.
This leaves the question of how to handle Watts’s new motion for preliminary
injunctive relief. The allegations in this motion, while troubling, do not arise out of the
specific claims upon which Watts is proceeding here. While the court could consider the
motion as a supplemental pleading under Fed. R. Civ. P. 15(d), it is unclear that his new
allegations can be considered part of the present case because there is no indication that
defendants Raemisch or Westfield had any personal responsibility with respect to protecting
Watts from the alleged beatings or, indeed, were even aware that Watts faced risks with

1

It appears that Watts did not serve defendants with a copy of this motion; he states that
he will serve defendants with a copy when directed by the court. There is no need for Watts to
serve defendants with any of his filings in this case. Pursuant to an informal service agreement
between the Department of Justice and this court, the department has agreed to accept
electronic service of documents on behalf of those defendants it represents.

2

DCI. See Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (liability under 42
U.S.C. § 1983 must be based on defendant's personal involvement in constitutional
violation).
Accordingly, the court concludes that it is appropriate to give Watts a short period
of time to file a formal supplement to the complaint more fully explaining the basis for the
new claims he wishes to raise against these defendants and, in particular, explaining what
role defendants have played in failing to protect Watts from beatings at the Dodge
Correctional Institution. If Watts is unable to explain how Westfield or Raemisch2 are
involved, then he will not be able to proceed against them in this case, though he may still
be given an opportunity to file a new lawsuit against other defendants as to his current
confinement.
In the meantime, because Watts’s allegations are so serious, the court will direct the
state to submit a response to this order, explaining where Watts is currently housed and
what has been done to protect him from physical violence, whether it be at the hands of
other prisoners or Department of Corrections staff.

2

Among other things, it is unclear whether Watts names defendant Raemisch in his new
allegations because he was personally involved in the claims or because Watts seeks injunctive
relief against the state and decided to name the former secretary of the Department of
Corrections in his official capacity. If Watts merely names Raemisch in his official capacity, the
court will replace him in the caption with the current secretary, Gary Hamblin. Fed. R. Civ. P.
25(d).

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ORDER
IT IS ORDERED that:
1. Plaintiff David Watts may have until September 15, 2012, to submit a
proposed supplement to his complaint more fully detailing his claims that
defendants are failing to protect him from physical violence at the Dodge
Correctional Institution.
2. The state may have until September 30, 2012, to submit a response to this
order explaining where Watts is currently housed and what has been done to
protect him from physical violence.
Entered this 23rd day of August, 2012.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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