Ajala, Mustafa-El v. U.W. Hospital and Clinics et al

Filing 29

ORDER denying 25 Motion for Screening of Complaint; denying 26 motion for an order establishing the amended complaint as the operative complaint; granting 27 Motion to Dismiss defendant Wisconsin Health Care Liability Plan. The complaint is DISMISSED WITH PREJUDICE as to that defendant. The proposed amended complaint, Dkt. 19 , is REJECTED. The original complaint remains the operative pleading. Signed by District Judge James D. Peterson on 1/23/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MUSTAFA-EL K.A. AJALA,
formerly known as DENNIS E. JONES-EL,

Plaintiff,
v.
OPINION & ORDER
UW HOSPITAL AND CLINICS, SUTCHIN PATEL,
BURTON COX, SRIHARAN SIVALINGAM, WI
HEALTH CARE LIABILITY PLAN, and INJURED
PATIENTS AND FAMILY COMPENSATION FUND,

16-cv-639-bbc1

Defendants.
Pro se prisoner and plaintiff Mustafa-El Ajala is proceeding on the following claims:
(1) defendants Burton Cox, Sutchin Patel, and Sriharan
Sivalingam consciously failed to diagnose Ajala’s hypercalcemia
and hyperparathyroidism and make reasonable efforts to cure
his conditions before 2013, in violation of the Eighth
Amendment and the Wisconsin common law of negligence;
(2) defendant Cox refused to prescribe citrate for Ajala for more
than two years, in violation of the Eighth Amendment and the
Wisconsin common law of negligence;
(3) after Ajala had surgery in 2013 to remove a kidney stone,
defendant Cox refused to give him adequate pain medication, in
violation of the Eighth Amendment and the common law of
negligence;
(4) defendant University of Wisconsin Hospital and Clinics may
be held liable for the negligence of defendants Patel and
Sivalingam under the doctrine of respondent superior; and
(5) if defendants Patel, Sivalingam or University of Wisconsin
Hospital and Clinics is found liable on one or more of plaintiff’s
state law claims, Wisconsin Health Care Liability Plan and
Injured Patients and Family Compensation Fund may be
1

Because Judge Crabb is on medical leave, I am issuing this order to prevent an undue delay
in the progress of this case.

required to pay all or a portion of the judgment pursuant to
Wis. Stat. §§ 632.24 and 655.27.
Several matters are now before the court: (1) a proposed amended complaint, Dkt. 19;
(2) a motion in which defendants ask the court to screen the complaint, Dkt. 25; (3) Ajala’s
“motion for an order establishing the amended complaint as the operative complaint,” Dkt.
26; and (4) Ajala’s motion to voluntarily dismiss defendant Wisconsin Health Care Liability
Plan from the case.
I am rejecting the proposed amended complaint because Ajala’s new allegations do not
state a claim upon which relief may be granted. However, I will grant Ajala’s motion to
dismiss the complaint as to the plan. Ajala says that none of the individual defendants are
covered by the plan, so the plan cannot be held liable. Accordingly, I will dismiss the plan
with prejudice.

ANALYSIS
Screening of the amended complaint is required under 28 U.S.C. § 1915(e)(2) and §
1915A, which require the court to dismiss the complaint if it is malicious, frivolous, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a party who is
immune. (Because screening is a statutory requirement, defendants did not need to file a
motion asking the court to screen the amended complaint.) Ajala does not highlight or
otherwise mark the changes he made in his 68-paragraph amended complaint, as Judge Crabb
generally requires. E.g., Czapiewski v. Bartow, No. 07-cv-549-bbc, 2008 WL 4078792, at *1
(W.D. Wis. Apr. 21, 2008) (“[I]t is this court's policy to ask the plaintiff to file a proposed
amended complaint that looks just like the original except that plaintiff is to . . . highlight all
the new or modified allegations he has made to the body of the complaint or to his request

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for relief.”). 2 However, in a letter accompanying the amended complaint, Ajala states that the
new complaint is “essentially the same.” Dkt. 19-1. The only changes he identifies are “a
denial of informed consent claim, a negligence claim against UWHC itself, and additional
facts regarding failure to treat his high calcium levels and for injunctive relief.” Id. Because
Ajala states that he has not made extensive changes, I will not require him to resubmit his
complaint in accordance with Judge Crabb’s practice. However, Ajala should follow those
instructions if he submits another new complaint in this case or any other.
As noted above, Ajala is already proceeding on a claim regarding the failure to treat
his high calcium levels. Because he does not suggest that the “additional facts” he provided
change the scope of his claim, it is unnecessary to discuss those new facts. Similarly, I need
not screen his request for injunctive relief because that is not part of his claims. Selective Ins.
Co. of S. Carolina v. City of Paris, 769 F.3d 501, 508 (7th Cir. 2014). If Ajala prevails on any
claim, the court will consider at that time whether he is entitled to an injunction.
This leaves Ajala’s claims for informed consent against all of the defendants and for
negligence against defendant University of Wisconsin Hospital and Clinics. A claim for
informed consent under Wisconsin law has three elements: (1) the patient was not informed
of the risks in the proposed treatment or procedure of which a reasonable person in the
patient's position would wish to be made aware; (2) a reasonable person in the patient's
position presented with such information would not have chosen to submit to the treatment
or procedure; and (3) the failure to disclose such information was a cause of the patient's
2

Another problem with the amended complaint is that Ajala lists only one defendant in the
caption, followed by the abbreviation “et al.” Under Federal Rule of Civil Procedure 10(b), all
parties must be included in the caption of the complaint. Myles v. U.S., 416 F.3d 551, 551
(7th Cir. 2005). However, because I am rejecting the amended complaint and the caption of
the original complaint lists all the defendants, Ajala does not need to file an amendment.

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injuries. Hannemann v. Boyson, 2005 WI 94, ¶ 50, 282 Wis. 2d 664, 698 N.W.2d 714. Ajala’s
amended complaint does not state a claim under this standard for the simple reason that
Ajala does not identify any treatment that defendants provided that he would have refused
had defendants provided more information to him. Rather, Ajala’s claim seems to be that
defendants “failed to inform [him] that he had . . . hypercalcemia and hyperparathyroidism
[and about] the viable modes of treatment.” Dkt. 19, at ¶ 55. That is simply a restatement of
Ajala’s claim for medical negligence, a claim on which he is already proceeding.
In the original screening order, Judge Crabb allowed Ajala to proceed against
defendant University of Wisconsin Hospital and Clinics under the doctrine of respondeat
superior, but she dismissed Ajala’s claims against the hospital for negligent hiring, training,
and supervision because he did not include any facts in his complaint suggesting that the
hospital was negligent in any way. I see no new allegations in the amended complaint that
would alter Judge Crabb’s conclusion. Rather, Ajala’s allegations still rely on the premise that
the hospital “is responsible for the breach of applicable medical care occasioned by its
employees and agents.” Dkt. 19, at ¶ 61. He does not identify any failure by the hospital in
screening its employees, hiring them, or supervising them.
In sum, Ajala has not identified any new claims that survive screening under §
1915(e)(2) and § 1915A. Because Ajala says that he has not otherwise changed the scope of
his claims, I see no reason to substitute the amended complaint. The original complaint will
remain the operative pleading.
Ajala raises two other issues in his “motion for an order establishing the amended
complaint as the operative complaint.” First, he asks the court for a ruling that his amended

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complaint “relates back” to his original complaint. Dkt. 26, at 2-3. Because I am not
accepting the amended complaint, that request is moot.
Second, he says that that the process receipt for defendant Patel “does not indicate it
was served on him.” Id. at 3. That is incorrect. The marshal signed the statement on the
receipt that Patel was “personally served” at his address on December 19, 2016. Dkt. 20. In
any event, Patel had filed an answer without raising any objections to service. Dkt. 23.

ORDER
IT IS ORDERED that:
1. The proposed amended complaint filed by Mustafa-El Ajala, formerly known as
Dennis Jones-El, Dkt. 19, is REJECTED. The original complaint remains the
operative pleading.
2. Defendants’ motion for screening, Dkt. 25, is DENIED as unnecessary.
3. Ajala’s “motion for an order establishing the amended complaint as the operative
complaint,” Dkt. 26, is DENIED.
4. Ajala’s motion to voluntarily dismiss defendant Wisconsin Health Care Liability
Plan, Dkt. 27, is GRANTED. The complaint is DISMISSED WITH PREJUDICE
as to that defendant.
Entered January 23, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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