Thomas, Darreyll v. Mashak, Meredith et al
ORDER denying plaintiff's 37 Motion to Amend Complaint. Signed by District Judge Barbara B. Crabb on 8/10/2017. (elc),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DARREYLL T. THOMAS,
MEREDITH MASHAK, GWEN SCHULTZ
and JAMES GREER,
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff and prisoner Darreyll Thomas is proceeding on claims under both the
Eighth Amendment and common law negligence regarding an alleged failure by defendants
Meredith Mashak, Gwen Schultz and James Greer to provide him needed medication. Now
plaintiff has filed a motion for leave to amend his complaint to add more claims and
defendants. Dkt. #37. As to new defendants, plaintiff wants to sue six more individuals,
including three “John Does,” along with the state of Wisconsin and multiple state agencies.
As to new claims, plaintiff wants to sue for alleged violations of the Americans with
I am denying plaintiff’s motion because it is untimely, would unfairly prejudice
defendants and require the court to set a new schedule for the case. Arreola v. Godinez, 546
F.3d 788, 796 (7th Cir. 2008) (“[D]istrict courts have broad discretion to deny leave to
amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure
deficiencies, undue prejudice to the defendants, or where the amendment would be futile.”).
Plaintiff filed this case in July 2016 and discovery has been proceeding since December
2016, when the court issued the preliminary pretrial conference order, setting July 28, 2017,
as the deadline for filing a dispositive motion. Dkt. #18. Plaintiff does not explain in his
motion why he waited until just before that deadline to expand the scope of his claims.
(Although the court did not receive the motion until August 7, 2017, it is dated July 20,
2017, and the envelope it came in is postmarked July 21, 2017, so I will assume that July
20, 2017 is the date plaintiff gave the motion to prison officials to mail. Taylor v. Brown,
787 F.3d 851, 858-59 (7th Cir. 2015) (under “mailbox rule,” prisoner submission is deemed
filed with court when he gives submission to prison officials for mailing).)
Plaintiff does not allege that defendants or other prison officials prevented him from
conducting any discovery or research he needed to bring his new claims sooner. Further, if
I were to grant plaintiff’s motion, it would require a delay of several months to serve the
complaint, identify the unknown defendants, allow the new defendants to answer and allow
the parties to conduct discovery related to the new claims. In short, the court would have
to strike the entire case schedule, including the trial date. In the absence of a compelling
reason for such a delay, which plaintiff has not shown, he is not entitled to amend his
complaint at this late date. Johnson v. Cypress Hill, 641 F.3d 867, 873 (7th Cir. 2011)
(observing that “[t]here must be a point at which a plaintiff makes a commitment to the
theory of [her] case,” and that changing one's claims “on the eve of summary judgment is
exactly the sort of switcheroo we have counseled against”); Feldman v. American Memorial
Life Insurance Co., 196 F.3d 783, 793 (7th Cir.1999) (affirming denial of leave to amend
complaint “on the eve of summary judgment proceedings”).
Even if plaintiff had filed his motion for leave to amend sooner, I could not allow him
to proceed on many of his new claims. For example, the state of Wisconsin and its agencies
cannot be sued for constitutional violations under 42 U.S.C. § 1983. Thomas v. Illinois,
697 F.3d 612, 613-14 (7th Cir. 2012). Such entities can be sued under the Americans with
Disabilities under some circumstances. United States v. Georgia, 546 U.S. 151 (2006).
However, to prevail on a claim under the ADA in the prison context, a plaintiff must show
that the defendant “exclud[ed] [plaintiff] from participation in or . . . deni[ed] [plaintiff] the
benefits of the services, programs, or activities of a public entity” and that such exclusion or
denial was “by reason of” the prisoner’s disability, 42 U.S.C. § 12132, which the ADA
defines as a “physical or mental impairment that substantially limits one or more of the
major life activities.” 42 U.S.C. § 12102(2)(A).
In this case, plaintiff includes no allegations in his proposed amended complaint
regarding any of the elements of an ADA claim.
In an “affidavit” accompanying the
proposed amended complaint, plaintiff says that he did not receive any “medical monitoring”
after he informed staff of symptoms he was experiencing caused by not receiving needed
medication and he identifies medical monitoring as a “program or service.” Dkt. #39 at 5,
9. Plaintiff does not explain what “medical monitoring” entails or how he was harmed by
not receiving any, but I understand him to be contending that he was entitled to such
monitoring under the ADA.
Plaintiff still does not identify a condition that he believes would qualify as a
disability under the ADA, but even I assume that he is disabled, plaintiff’s allegation does
not state a claim upon which relief may be granted. Plaintiff misunderstands the scope of
the provision he cites.
Section 12132 requires prison officials to provide reasonable
accommodations to prisoners when such an accommodation is necessary to allow the
prisoner to participate in or receive the benefits of a program, service or activity that is
offered to other prisoners. E.g., Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012)
(prisoner stated claim under ADA by alleging that he was denied recreation because of his
disability); Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 672 (7th Cir. 2012)
(prisoner stated claim by alleging he was denied meals and showers because of his disability).
In this case, plaintiff alleges that he was denied the “benefit” of medical monitoring, but he
does not allege that he was treated differently because of his disability. Rather, his claim is
the exact opposite, which is that he should have been treated differently because of his
disability. Because such a claim is not recognized under the ADA, I could not allow him to
proceed on such a claim.
IT IS ORDERED that plaintiff Darryell Thomas’s motion for leave to amend his
complaint, dkt.#37, is DENIED.
Entered this 10th day of August, 2017.
BY THE COURT:
BARBARA B. CRABB
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?