Jones, Christopher v. Nelson, Andrea et al

Filing 21

ORDER granting 15 Motion to Amend Complaint; granting 19 Motion for Screening of Complaint; denying as moot 20 Motion to Stay. Plaintiff granted leave to proceed against defendants Nelson, Neumaier, Millard, Howell, Veiter and Baird. The Wisconsin Department of Justice may have until October 31, 2016 to inform the court whether it will accept service of plaintiff's amended complaint on behalf of defendants Br. Neumaier, Millard, Howell, Veiter and Baird. If the Department accepts service for defendants Neumaier, Millard, Howell, Veiter and Baird, these defendants may have until November 14, 2016 to file and serve their answers. Defendants are free to file a motion for summary judgment on exhaustion grounds at any time before the February 10, 2017 deadline for all dispositive motions. Signed by District Judge Barbara B. Crabb on 10/21/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CHRISTOPHER JONES,
OPINION and ORDER
Plaintiff,
15-cv-831-bbc
v.
ANDREA NELSON and JOHN DOE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff and prisoner Christopher Jones is proceeding on claims that two
prison officials at Columbia Correctional Institution in Portage, Wisconsin, knowingly failed
to provide him with needed medical attention, in violation of the Eighth Amendment to the
U.S. Constitution.

Specifically, plaintiff says that he first complained to a prison

psychologist (Dr. Andrea Nelson) that he was “going blind,” and was simply told to lie down
and left alone. He then complained of dizziness to a correctional officer (“John Doe”), who
declined to call a medical professional and instead left plaintiff unattended in an observation
cell for several hours. Soon thereafter, plaintiff suffered an apparent diabetic episode,
allegedly suffering serious harm and ending up in a coma.
Plaintiff is now seeking permission to amend his complaint, which I am granting.
Defendants have asked the court to screen plaintiff’s amended complaint, which I will do in
this order. They have also moved to stay the deadline for filing dispositive motions related

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to exhaustion of administrative remedies. I am denying that motion, but with a caveat as
explained below.

OPINION
A. Procedural History
In this court’s Preliminary Pretrial Conference Order, dkt. #13, plaintiff was given
a deadline of August 30, 2016 to file an amended complaint identifying the real name of
defendant “John Doe.” Plaintiff was also instructed that if he wished to make any other
changes to his complaint, he would need to ask the court for permission. On August 1,
2016, plaintiff filed a motion for leave to amend his complaint, along with a proposed
amended complaint and an affidavit in support. Dkt. ##15-17. In addition to identifying
the “Doe” defendant as correctional officer Br. Neumaier, plaintiff introduced new claims
against four new defendants. Defendant Nelson did not file an opposition brief by the
August 15 deadline. Instead, on September 20, 2016, she filed a motion requesting that the
court screen plaintiff’s amended complaint in accordance with 28 U.S.C. § 1915A. Dkt.
#19. On September 21, defendant Neumaier missed his deadline, as set by the court’s prior
order (dkt. #13), for filing an answer. Then, on September 23, the deadline for filing a
dispositive motion raising exhaustion defenses, defendant Nelson filed a motion to stay that
deadline. Dkt. #20.

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B. Plaintiff’s Motion for Leave to Amend and Defendants’ Motion for Screening
Plaintiff is seeking leave to amend his complaint in three principal ways: (1) to
identify defendant “Doe,” as directed by the court; (2) to include Eighth Amendment claims
against four new defendants; and (3) to bring additional but related medical malpractice
claims under Wisconsin state law.
Although defendant Nelson suggests otherwise in her request for a screening order,
dkt. #19 at 2, plaintiff has followed the court’s instructions and timely named the “Doe”
defendant from his original complaint: he identifies this individual as correctional officer Br.
Neumaier. Dkt. #15, at ¶9. Plaintiff has also properly sought permission from the court to
make other changes to his complaint, as he was instructed to do.
Under Fed. R. Civ. P. 15(a)(2), “[t]the court should freely give leave [to amend a
pleading] when justice so requires.” I have discretion to deny a proposed amendment for
reasons of undue delay, bad faith, undue prejudice to the opposing party or if the
amendment would futile. See, e.g., Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008);
Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001). By declining to
file an opposition brief, defendants have given the court no reason to believe that any of
these potentially valid reasons for denying amendment apply here. There has been no undue
delay by plaintiff; he filed his proposed amendment nearly a month in advance of the
deadline set by the court. Nor is there any reason to suspect bad faith. The remaining
factors, undue prejudice to defendants and futility, require further analysis.
Granting plaintiff leave to amend would present no undue prejudice to defendant

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Nelson, and she has made no such argument, as the proposed amendment would have little
effect on her. The important question is whether the new defendants identified in plaintiff’s
proposed amended complaint would suffer unfair prejudice by being added to the case at the
current stage in the proceedings. At this point, I am not persuaded that they would.
Because all of the newly named defendants are, like defendant Nelson, employees of the
Wisconsin Department of Corrections, they would likely be represented by the same counsel
within the state Department of Justice. As noted in more detail below, both new and old
allegations concern the same set of facts and same course of events within a four or five day
period in July 2010, so allowing amendment should not impose any difficult or burdensome
new discovery challenges. Given also that the deadline for filing summary judgment motions
is not until February 10, 2017, I believe that the new defendants would have enough time
to adequately mount their defense. As of now, I see no reason why the new defendants
would face undue prejudice by being added to the case on its current schedule.
Amendment is futile if the complaint, as amended, fails to state a claim upon which
relief can be granted. Runnion v. Girl Scouts of Greater Chicago & Northwest Indiana, 786
F.3d 510, 524–26 (7th Cir. 2015); General Electric Capital Corp. v. Lease Resolution Corp.,
128 F.3d 1074, 1085 (7th Cir. 1997). This is the same analysis that I must conduct in order
to screen the amended complaint in accordance with 28 U.S.C. § 1915A. I will therefore
address both issues together. I note that all of the new allegations concern the same general
incident that was the focal point of plaintiff’s original complaint, and thus, every issue raised
in the proposed amended complaint appears closely linked with the claims that I previously

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screened and allowed to proceed. Nevertheless, I will screen all new claims independently.
In doing so, I will accept plaintiff’s allegations as true and read them in the light most
favorable to him. Perez v. Fenoglio, 792 F.3d 768, 774 (7th Cir. 2015).
Plaintiff is a diabetic inmate with known mental health issues who was placed under
observation by prison officials on July 7, 2010 after stating that he was feeling depressed and
suicidal and requesting medical help. A few days later, on July 11, 2010, Plaintiff was found
in his observational cell, comatose and covered in his own vomit, and had to be rushed to
the hospital.
The proposed amended complaint introduces new claims against four new defendants:
prison psychologist Dr. Baird and correctional officers Millard, Howell and Veiter. Plaintiff
says that each of these four officials ignored direct warnings that he was in immediate need
of medical care. Specifically, he alleges that on July 8, 2010, Dr. Baird refused to act when
told that plaintiff had threatened to strangle himself in his observation cell, and then twice
ignored plaintiff’s requests for immediate medical attention. Plaintiff further alleges that on
July 10 and 11, he made “repeated requests” to officers Millard, Howell and Veiter to be
seen by the Health Services Unit because he was feeling ill and having trouble seeing, but
that they all “denied that [plaintiff] had any problems and refused to contact HSU.” Dkt.
#16, at ¶¶ 17-32. These allegations are enough to state a claim that Dr. Baird and officers
Millard, Howell and Veiter were deliberately indifferent to plaintiff’s serious medical needs.
Therefore, under the same analysis and for the same reasons already stated in the court’s
screening order with respect to Dr. Nelson and “John Doe” (officer Neumaier), dkt. #5 at

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3-4, I conclude that plaintiff’s Eighth Amendment claims may proceed against all defendants.
Plaintiff also claims that Dr. Baird and Dr. Nelson were negligent in their professional
duties and that their failure to properly treat plaintiff was medical malpractice under state
law. (There are no state law claims against the other four defendants.) Wisconsin law
defines medical malpractice as the failure of a medical professional to “exercise that degree
of care and skill which is exercised by the average practitioner in the class to which he
belongs, acting in the same or similar circumstances.” Sheahan v. Suliene, 12-cv-433-bbc,
2014 WL 1233700, *9 (W.D. Wis. Mar. 25, 2014) (quoting Sawyer v. Midelfort, 227 Wis.
2d 124, 149, 595 N.W.2d 423, 435 (1999)). To succeed on a medical malpractice claim,
plaintiff must prove that defendants breached their duty of care to him and that he suffered
an injury as a result. Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860.
Plaintiff’s allegations that Dr. Nelson and Dr. Baird failed to timely evaluate and treat him
while he was at obvious risk of impending harm are enough to state a medical malpractice
claim under state law as well.
Consequently, I also find that plaintiff’s proposed amended complaint would not be
futile, and the interests of justice weigh in favor of granting plaintiff’s motion and allowing
him to file his amended complaint.

C. Defendants’ Motion to Stay
Defendant Nelson asks the court to stay the deadline for filing a dispositive motion
related to exhaustion of administrative remedies until after the court screens the amended

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complaint. That deadline was set for September 23, 2016, and she has obviously already
missed it. Because plaintiff’s amended complaint does not affect defendant Nelson, she had
no need for a stay pending its screening (and had more than enough time to prepare a
dispositive motion on this issue).
However, most of the defendants have not yet had an opportunity to assert an
exhaustion defense. Because the issue of exhaustion is likely to be resolved the same way as
to all defendants, it makes sense to set a new deadline for all defendants. To avoid the need
to adjust later court deadlines, I will allow defendants to file a summary judgment motion
related to exhaustion at or any time before the general deadline for filing all dispositive
motions, which is February 10, 2017. Alternatively, defendants are free to file one combined
summary judgment motion addressing both exhaustion and the merits.

However, if

defendants choose to file a separate motion on exhaustion, they should not assume that such
a motion will be resolved before February 10, 2017.

ORDER
IT IS ORDERED that
1.

Plaintiff Christopher Jones’s motion for leave to amend his complaint, dkt.

#15, is GRANTED.
2.

The Wisconsin Department of Justice may have until October 31, 2016 to

inform the court whether it will accept service of plaintiff’s amended complaint on behalf
of defendants Br. Neumaier, Millard, Howell, Veiter and Baird.

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3.

If the Department accepts service for defendants Neumaier, Millard, Howell,

Veiter and Baird, these defendants may have until November 14, 2016 to file and serve their
answers.
4.

Defendants’ motion for screening of the amended complaint, dkt. #19, is

GRANTED. As noted above, plaintiff is GRANTED leave to proceed on his claim that
defendants Neumaier, Millard, Howell, Veiter and Baird violated his Eighth Amendment
rights by refusing repeated requests for medical care from July 7-11, 2010. Plaintiff is also
GRANTED leave to proceed on his state medical malpractice claim against defendants
Nelson and Baird, arising from the same events during the same time period.
5.

Defendants’ motion to stay, dkt. #20, is DENIED as moot. However, any of

the defendants are free to file a motion for summary judgment on exhaustion grounds at any
time before the February 10, 2017 deadline for all dispositive motions.
Entered this 21st day of October, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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