Johnson, Ivan v. Tuckwell, Robert et al

Filing 36

ORDER denying plaintiff's 31 Motion for Sanctions. Plaintiff may have until December 27, 2013, to file an amended complaint to add Tom Umentum as a defendant. Signed by District Judge Barbara B. Crabb on 12/13/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - IVAN JOHNSON,
ORDER
Plaintiff,
12-cv-891-bbc
v.
ROBERT TUCKWELL, PAUL SUMNICHT,
BELINDA SCHRUBBE, CHARLENE REITZ,
JEREMY STANIEC, BENJAMIN HILBERT,
DANIEL BRAEMER, BONNIE LYND,
JERRICA EAGER and JOHN DOE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Ivan Johnson is proceeding on a claim that defendants violated the
Eighth Amendment by refusing to provide a special diet that plaintiff needed after surgery.
In his complaint, plaintiff identified one of the defendants as Bryan Umentum, but
Magistrate Judge Stephen Crocker substituted a John Doe defendant for Umentum when
the Department of Justice said that no one named Bryan Umentum was employed by the
Wisconsin Department of Corrections. Dkt. #12. In the preliminary pretrial conference
order, the magistrate judge directed plaintiff to conduct discovery to determine the name of
the John Doe defendant. Dkt. #14.
Plaintiff served an interrogatory on defendants in an attempt to discover the John
Doe defendant’s identity, providing a description of the officer and the relevant time and

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place he would have been working. In addition, plaintiff stated that he continued to believe
that the officer’s last name was Umentum. In response, defendants stated that no one
matched plaintiff’s description and that no one named Umentum was working on plaintiff’s
unit at the relevant time. Dkt. #15.
As it turns out, that was incorrect. After plaintiff obtained the employee logs for his
unit for the relevant time, he discovered that someone named Tom Umentum had worked
on the unit then.
Plaintiff has filed a motion for sanctions, dkt. #31, but I am denying it because
plaintiff has not shown that defendants’ failure to identify Umentum was an intentional
attempt to conceal information or otherwise prevent plaintiff from prevailing on his claim.
However, I will give plaintiff an opportunity to amend his complaint to add Umentum as
a defendant. Plaintiff need not draft a new complaint from scratch. He may use a copy of
his original complaint, crossing out all references to “Bryan Umentum” and replacing them
with “Tom Umentum.” I have included a copy of the complaint with this order. Finally, I
note that the Department of Justice has agreed to accept service on behalf of Umentum and
to answer the amended complaint within 10 days after plaintiff files it. Dkt. #32.

ORDER
IT IS ORDERED that plaintiff Ivan Johnson’s motion for sanctions, dkt. #31, is
DENIED. Plaintiff may have until December 27, 2013, to file an amended complaint to add

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Tom Umentum as a defendant.
Entered this 13th day of December, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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