Brown v. Gennrich

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

______________________________________________________________________________

ENNIS LEE BROWN,

Plaintiff,

v. Case No. 16-cv-241-pp

MICHAEL HANNAH, and

CO JOHN DOE, sued as John Doe CO’s 1-3,

Defendants.

______________________________________________________________________________

ORDER GRANTING PLAINTIFF’S MOTION FOR CLARITY (DKT. NO. 114)

______________________________________________________________________________

The plaintiff has filed a motion for clarity. Dkt. No. 114. He seeks clarity

on several issues, and the court address his questions below.

A. Background

On February 25, 2019, the court granted the defendants’ motion to

dismiss unrelated claims and determined that the plaintiff could not proceed

on his amended complaint, dkt. no. 10, because it violated Federal Rules of

Civil Procedure 18 and 20. Dkt. No. 99 at 1. The court ordered that if the

plaintiff wanted to proceed, he would have to file separate complaints for each

of his six claims. Id. The court ordered that by April 12, 2019, the plaintiff

must file a second amended complaint in this case related to Claim 1 from the

amended complaint, and that he should file separate new complaints for each

of Claims 2 through 6 of the amended complaint. Id. at 11-14. The court also

ordered that the plaintiff would not be able to proceed on any new claims that

he did not raise in Claims 1-6, as described in the court’s order. Id. at 14. The

court advised the plaintiff that he would not have to pay a filing fee for any new

complaint he filed regarding Claims 2-6, and that the court would not apply 28

U.S.C. §1915(g) to any new cases he filed regarding Claims 2-6. Dkt. No. 99 at

9, 10 n.2.

B. Plaintiff’s Motion for Clarity, dkt. no. 114

In his motion for clarity, the plaintiff first states that the court has not

ruled on his supplemental brief in support of reconsideration (dkt. no. 107).

Dkt. No. 114 at 1. The court notes that it rules on motions; it doesn’t rule on

briefs. Briefs provide the legal basis for the court to rule on motions. That

technicality aside, the supplemental brief to which the plaintiff refers was filed

in support of his motion for reconsideration, which he filed on March 4, 2019.

Dkt. No. 100. He filed the supplemental brief on June 17, 2019, over three

months after he filed his motion to reconsider. Dkt. No. 107. But on March 26,

2019, the court denied the plaintiff’s motion for reconsideration of the court’s

order granting defendants’ motion to dismiss unrelated claims. Dkt. No. 103.

By the time the plaintiff filed his supplemental brief, the court already had

ruled on the motion to reconsider—it had ruled almost three months earlier.

The plaintiff filed his supplemental brief too late. The court has resolved the

motion to reconsider.

Second, the plaintiff asks whether the court ruled in accordance to law

on the issue of severance. Dkt. No. 114 at 1. He states that the Court of

Appeals for the Seventh Circuit directed that when a federal civil case is

severed, the court should not dismiss the second claim but, rather, the clerk of

court should create multiple docket numbers and the severed claims proceed

as if the cases had been filed separately. Id. (citing UWM Student Assoc. v.

Lovell, 888 F.3d 854, 864 (7th Cir. 2018)). The plaintiff points to one of the

options the Seventh Circuit identified, but there is another—dismissal without

prejudice, which is the option this court used in the plaintiff’s case. See UWM

Student Assoc., 888 F.3d at 864 (“The proper remedy for violations of Rules 18

and 20 is severance or dismissal without prejudice, not dismissal with

prejudice.”) (emphasis added). The court ruled properly when it dismissed

Claims 2-6 without prejudice.

Third, the plaintiff asks why the defendants are being allowed to answer

the complaint a second time, contrary to Fed. R. Civ. P. 12(a)(1)(A)(i), since they

already answered the amended complaint on June 30, 2016. Dkt. No. 114 at 2.

The answer is that the defendants are not answering the complaint a second

time. Defendant Hannah, the only named defendant, was not listed in the

caption of the plaintiff’s amended complaint (dkt. no. 10 at 2), and as a result,

defendant Hannah was not served with the amended complaint and did not

answer have the opportunity to answer it. The plaintiff subsequently identified

CO Hannah as one of the Doe defendants, and the court added CO Hannah as

a defendant at that time. Dkt. No. 48 at 10. Hannah accepted service on July

9, 2019, dkt. no. 111, and it is Hannah—and only Hannah—who recently field

an answer, dkt. no. 112.

Fourth, the plaintiff asks whether the court is reopening and/or

reviewing its ruling as to exhaustion of administrative remedies. Dkt. No. 114

at 3. On March 30, 2018, the court denied the defendants’ amended motion to

dismiss for failure to exhaust administrative remedies. Dkt. No. 75 at 14-17.

The court found that the parties disputed whether the plaintiff had exhausted

available administrative remedies because they did not agree on whether the

plaintiff knew about the jail’s grievance procedure, and when. Id. at 14. The

court found that the parties also disputed whether the plaintiff had attempted

to exhaust the remedies that were available to him regarding Claim 1 (and his

other claims). Id. at 15. The deadline for the plaintiff to file an amended

complaint identifying Doe defendants is November 15, 2019. Dkt. No. 113.

Once any Doe defendants have been identified and served, and filed a

responsive pleading, the court will allow those defendants an opportunity to

indicate whether they want an evidentiary hearing on the exhaustion issue or

to notify the court that they will waive the exhaustion affirmative defense. So

the answer to the plaintiff’s question is that the court hasn’t issue a final ruling

on the exhaustion issue; it will do so once all the defendants have answered

the complaint, and only if they indicate that they want to pursue the

exhaustion defense.

Fifth, the plaintiff asks why the court has not exercised its discretion to

join his claims to preserve scarce judicial resources. Dkt. No. 114 at 3. It is

true that it is important for the court to preserve judicial resources, but that

isn’t a reason for the court to allow a plaintiff to join unrelated claims and

unrelated defendants. Joining unrelated claims and defendants prejudices the

defendants, confuses juries (when the cases get that far), and puts an

additional burden on the courts to try to figure out which claims and which

evidence relates to which defendants.

Sixth, the plaintiff asks whether this court should still be presiding over

this case after the grievances and writ of mandamus he filed in the Seventh

Circuit. Dkt. No. 114 at. 4. He states that he has questioned the court’s “racial

views” and “integrity to administer the law,” yet the court refuses to “sever”

itself as required by 28 U.S.C. §455(a). Dkt. No. 114 at 4. The plaintiff states

that the court has refused to investigate the validity of his being held at the

Milwaukee County Criminal Justice Facility. Id. at 5. He also states that any

reasonable person would assume bias. Id. The court has considered the

plaintiffs arguments in support of recusal, and has denied motion for recusal

under 28 U.S.C. §8455(a). Dkt. No. 48 at 4-5. The court explained in that order

why it was doing so. Nothing has changed; the plaintiff has not provided a

sufficient reason to show that the court should be disqualified under 28 U.S.C.

§455(a). See Liteky v. United States, 510 U.S. 540, 555-56 (1994).

The court GRANTS the plaintiffs motion for clarification. Dkt. No. 114.

Dated in Milwaukee, Wisconsin this 9th day of October, 2019.

BY THE COURT:

United States District Judge