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 DEFENDANT’S MOTION TO DISMISS PARTY (DKT. NO.

118) AND DISMISSING DEFENDANT MICHAEL HANNAH, GRANTING

DEFENDANT’S MOTION TO ADD PARTY (DKT. NO. 118) AND ADDING

MARLON HANNAH AS A DEFENDANT; DENYING AS MOOT PLAINTIFF’S

MOTION FOR RECUSAL/MOTION TO CLARIFY (DKT. NO. 121); DENYING

PLAINTIFF’S MOTION TO COMPEL DISCOVERY (DKT. NO. 122); DENYING

PLAINTIFF’S MOTION TO ADD PARTIES (DKT. NO. 124); GRANTING

DEFENDANT’S MOTION TO FILE AMENDED ANSWER (DKT. NO. 125);

DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED

COMPLAINT (DKT. NO. 127) AND GRANTING IN PART AND DENYING IN

PART DEFENDANT’S MOTION TO STAY PROCEEDINGS AND AMEND

SCHEDULING ORDER (DKT. NO. 132)

______________________________________________________________________________

On June 11, 2019, the court struck the plaintiff’s second amended

complaint and allowed the plaintiff to proceed on Claim 1 from his June 8,

2016 amended complaint (dkt. no. 10). Dkt. No. 106 at 1, 4. Specifically, the

court allowed the plaintiff to proceed on Claim 1—#5 at page 5, his Fourteenth

Amendment excessive force and Eighth Amendment failure to provide medical

care claims against CO Hannah and the three John Doe COs, based on the

February 6, 2013 incident. Dkt. No. 106 at 4. Defendant Michael Hannah

answered the amended complaint on August 12, 2019, dkt. no. 112, and three

days later the court issued a scheduling order, dkt. no. 113. That order

required the parties to complete discovery by December 16, 2019; to move to

amend the pleadings by November 15, 2019; and to file dispositive motions by

January 17, 2020. Id. The defendant since has filed a motion to dismiss party

and add party, dkt. no. 118; and a motion to file amended answer, dkt. no.

125. The plaintiff has filed a motion for recusal and motion to clarify, dkt. no.

121; a motion to compel discovery, dkt. no. 122; a motion to add parties, dkt.

no. 124; and a motion for leave to file amended complaint, dkt. no. 127. The

plaintiff has also filed a document submitting the names of two of the three

John Doe defendants. Dkt. No. 123. Finally, the defendant has asked the court

to stay proceedings until it rules on the pending motions. Dkt. No. 132.

A. Defendant’s Motion to Dismiss and to Name New Defendant

(Dkt. No. 118); Defendant’s Motion for Leave to Amend Answer

(Dkt. No. 125)

The defendant asks to dismiss defendant Michael Hannah and to add

Marlon Hannah as a defendant. Dkt. No. 118. The defendant indicates that in

seeking to determine the identity of the “CO Hannah” named in the amended

complaint, counsel thought that the defendant was Michael Hannah, based on

an initial review of the allegations and the initial interview with Michael

Hannah. Dkt. No. 119 at 1. The defendant says, however, that a further review

of Milwaukee County Jail records showed that Michael Hannah had no

connection with the allegations in the amended complaint, and that the

plaintiff likely intended to name Marlon Hannah as a defendant. Id. The

defendant explains that this understanding of the plaintiff’s intent is solidified

by the plaintiff’s recent Sixth Request for Discovery, which clarified that he is

suing the CO Hannah who no longer works at the Milwaukee County Jail. Id.

at 1-2. According to the defendant, Marlon Hannah no longer works at the jail,

he has consented to be represented by the Office of Corporation Counsel and, if

named, defense counsel will accept service on his behalf. Id. at 2. The

defendant says that because Michael Hannah has no connection to the

allegations in the plaintiff’s amended complaint, he should be dismissed as a

defendant and Marlon Hannah should be named as a defendant consistent

with the plaintiff’s allegations and his discovery inquiry. Id.

Based on the defendant’s motion and supporting brief, it appears that

two CO Hannahs worked at the Milwaukee County Jail during the relevant

events the plaintiff described in the amended complaint. While CO Michael

Hannah was served with the amended complaint, the defendant now has

additional information clarifying that CO Marlon Hannah is the “CO Hannah”

named in the amended complaint. The plaintiff has indicated that while the

court referred to the defendant as “Melvin Hannah” (the court can’t find any

record of its referring to the defendant as “Melvin”), “the actual Defendants

name is ‘MARLAN HANNAH”, the brother of Melvin Hannah.” Dkt. No. 123. The

court construes this as the plaintiff’s agreement that the correct plaintiff is

Marlon Hannah. The court will grant the defendant’s motion to dismiss Michael

Hannah, and to add Marlon Hannah.

On November 5, 2019, the defendant filed a motion for leave to amend

the answer along with a proposed amended answer that references CO Marlon

Hannah as a party in place of CO Michael Hannah. Dkt. No. 125. The court will

grant this motion and direct the clerk’s office to docket the proposed amended

answer (Dkt. No. 125-1).

B. Plaintiff’s Motion for Recusal and Motion to Clarify (Dkt. No.

121)

On August 23, 2019, the court received from the plaintiff a document

entitled “Motion for Clarity.” Dkt. No. 114. In that motion, the plaintiff asserted

that in his brief in support of his motion asking the court to consider its order

requiring him to select from among his many mis-joined claims (dkt. no. 107),

he’d presented arguments supporting his view that his claims were properly

joined; he argued that the court had not addressed those arguments. Id. at 1-3.

He also questioned whether the court should continue to preside over his case,

given that he’d filed grievances against Judge Pepper and a writ of mandamus

with the Seventh Circuit. Id. at 4-6. On October 9, 2019, the court responded

to that motion in a five-page order, explaining why the law required the plaintiff

to select among his claims, and responding (as it has several times) to his

allegations that Judge Pepper is biased against him. Dkt. No. 120.

The next day—October 21, 2019—the court received this current motion

for clarification and motion for recusal. Dkt. No. 121. It is almost identical to

the motion the plaintiff filed in August, at Dkt. No. 114. The court addressed

the plaintiff’s questions, as well as his request for recusal, in its order filed

October 9, 2019. Dkt. No. 120. (The court’s October 9, 2019 order probably

didn’t reach the plaintiff before he submitted his October 10, 2019 motion for

recusal and clarity.) Because the court already has addressed the issues raised

in the plaintiff’s motion for clarity and motion for recusal, the court will deny

the motions as moot.

C. Plaintiff’s Motion to Compel Discovery (Dkt. No. 122)

In April 2018, the plaintiff filed a motion to compel the defendants to

provide him with discovery, which he summed up as “any and all documents

that allowed the Milwaukee County Sheriff Dept. to Detain the Plaintiff from

July, 28, 2012 through October 28, 2013 fore the case of 2012-cf-03796 or any

case, court order, parole violation, warrant, of any Jurisdiction or county or

State in the Continental United States.” Dkt. No. 77 at 2. This discovery related

to one of the many claims in the amended complaint—his fourth claim, that

certain defendants violated the Fourteenth and Eighth Amendments by placing

him in segregation without a hearing. See Dkt. No. 99 at 2. The court denied

the motion to compel on February 25, 2019, noting that it had stayed the

proceedings on the merits until it could resolve the defendants’ motion to

dismiss on exhaustion grounds. Dkt. No. 99 at 10.

On October 23, 2019, the court received from the plaintiff this current

motion to compel; it is identical to the motion he filed in April, except that the

plaintiff didn’t sign or date it. Dkt. No. 122 at 1-2. The plaintiff did not include

a certification showing that he conferred with defense counsel before filing his

motion to compel, as required by Civil Local Rule 37 (E.D. Wis.) (motion to

compel must “be accompanied by a written certification by the movant that,

after the movant in good faith has conferred or attempted to confer with the

person or party failing to make disclosure or discovery in an effort to obtain it

without court action, the parties are unable to reach an accord”). Without such

a certification, the plaintiff’s motion is premature.

Even if the plaintiff had complied with the court’s local rule, the court

would deny his motion, because it asks for discovery that is not relevant to the

claim upon which he’s proceeding. Since the last time the plaintiff filed this

motion, the court required him to choose a single claim upon which to proceed.

The plaintiff did not make that choice, so the court allowed him to proceed on

claim #5 at page 5 of the June 8, 2016 amended complaint, “the Fourteenth

Amendment excessive force and Eight Amendment failure to provide medical

care claims against CO Hannah and three John Doe CO’s, based on the

February 6, 2013 incident.” Dkt. No. 106 at 3. The information the plaintiff

seeks in his motion to compel is not relevant to that claim.

In his response, the defendant argued that under Federal Rule of Civil

Procedure 37(a)(5)(B), when a court denies a motion to compel, the party

opposing the motion may recover reasonable expenses (including attorneys’

fees). Dkt. No. 126 at 2. The defendant asserts that the court should allow him

to recover expenses under this rule because the plaintiff has requested

information multiple times, requiring multiple responses, all of which have

stated that the information is unrelated to the case pending before the court.

Dkt. No. Id. The defendant contends that he should not have been put to the

burden and expenses of addressing these unnecessary discovery demands. Id.

Rule 37(a)(5)(B) “presumptively requires” that the plaintiff should pay the

defendant’s reasonable expenses. See Rickels v. City of S. Bend, Ind., 33 F.3d

785, 786 (7th Cir. 1994). The rule provides:

If the motion [to compel] is denied, the court … must, after giving an

opportunity to be heard, require the movant, the attorney filing the

motion, or both to pay the party or deponent who opposed the

motion its reasonable expenses incurred in opposing the motion,

including attorney’s fees. But the court must not order this payment

if the motion was substantially justified or other circumstances

make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(B). The plaintiff has not responded to the defendant’s

request for reasonable expenses. The court cannot conclude that the plaintiff’s

motion to compel was “substantially justified.” The plaintiff did not certify that

he consulted with the defendant before seeking court intervention and he seeks

information unrelated to the claims he is proceeding on in this case. The court

is unaware of other circumstances that would make an award of expenses

unjust. Cf. Banty v. Dings Co. Magnetic Group, No. 09-C-0963, 2010 WL

4337905, at *3 (E.D. Wis. Oct. 22, 2010) (“[i]ndigency does not make an award

unjust”); Rickels, 33 F.3d at 786-87 (affirming district court’s order that

unrepresented litigant pay reasonable expenses, including attorney’s fees,

under Rule 37(a)(4)). The court will direct the defendant to submit a

documentation of the reasonable expenses, including attorney’s fees, incurred

in opposing the plaintiff’s motion to compel.

D. Plaintiff’s Motion to Add Parties (Dkt. No. 124)

The plaintiff has asked the court to allow him to add parties and claims

based on “newly discovered evidence” which shows that he was illegally

detained during the time when his claim arose. Dkt. No. 124 at 1-2. He says

that this new evidence shows that his claims were properly joined, and that the

court should not have required him to select one claim upon which to proceed.

Id. at 1-2. If, in fact, the plaintiff has new evidence to support his claim of

illegal detention, he may file a new lawsuit making that allegation. The court

already has decided, however, that he cannot pursue that claim—regardless of

how much evidence he has—in this lawsuit. Dkt. Nos. 99, 103, 106. The

plaintiff is attempting to use this request to have the court—once again—

reconsider its order that he can’t proceed on unrelated claims in a single case.

The court understands that the plaintiff disagrees that the claims are

unrelated. He is entitled to disagree, but the court’s ruling stands. The court

will deny the motion to add parties.

E. Plaintiff’s Motion to Amend Complaint (Dkt. No. 127)

The plaintiff also has asked the court to allow him to amend the

complaint and has provided a proposed amended complaint. Dkt. Nos. 127,

127-1. He seeks to include jail record exhibits as newly discovered evidence to

show that he was illegally detained during the time when his claims arose. Dkt.

No. 127 at 1. The plaintiff states that the claims and parties that the court

previously dismissed may be properly joined because his detention during the

relevant time period was illegal. Id. at 2. According to the plaintiff, he has

presented official jail records that show him “OWB” (out with bail) after the “No

Process” with the jail, yet he was never released and was held in violation of his

Fourth Amendment rights. Id. at 4.

This motion is another attempt to have the court reconsider its order

dismissing unrelated claims. As explained above and in previous orders, the

plaintiff may not proceed on all his claims in this case. See also Dkt. No. 99 at

5-10; Dkt. No. 103 at 1-4; Dkt. No. 106 at 3. The court will deny the motion.

F. Plaintiff’s Submission of the Names of John Does (Dkt. No.

123)

On November 1, 2019, the plaintiff provided the court with the names of

John Doe defendants #1 and #2, and with two potential names for John Doe

#3. Dkt. No. 123. The plaintiff stated that he was waiting for a photo to help

him determine the correct name of John Doe #3. Id.

The August 15, 2019 Scheduling Order set a deadline of November 15,

2019 for the plaintiff to file motions to amend the pleadings or add parties,

including the identification of the John Doe defendants. Dkt. No. 113 at 1. The

plaintiff’s letter is timely.

The claim upon which the plaintiff is proceeding stated:

On February 6 2013 while on suicide watch, the C.E.R.T. Team for

[Milwaukee County Criminal Justice Facility] was doing a cell

search. After the search, I was getting the restraints removed as C.O.

Hannah was removing them 3 other C.O’s snatched the rib belt

putting me into the food shute up to my chest. As they held the belt

the hand cuff’s cut into my writs. C.O. Hannah again started to

remove the cuff’s and when he did my wrist was bleeding and my

forearm’s where scratched up and scarred. I then asked for medical

attention and was denied. Later that nite Nurse Vicki examined me

while passing out meds.

Dkt. No. 10 at 5, ¶5. The court will direct the clerk’s office to substitute the

names Michael Huber and Michael Ninkovic for two of the “John Doe CO’s 1-3.”

The court will require the plaintiff to identify the third John Doe CO by the end

of the day on January 31, 2020. If the plaintiff does not identify the third John

Doe CO by the end of the day on 31, 2020, the complaint will proceed against

Marlon Hannah, Michael Huber and Michael Ninkovic.

G. Defendant’s Motion to Stay and Amend Scheduling Order (Dkt.

No. 132)

The defendant has asked the court to stay proceedings until it could rule

on the above motions, and then to amend the scheduling order to allow

discovery regarding any additional defendants. Dkt. No. 132. The plaintiff filed

an objection, but the substance of the objection is the plaintiff’s argument that

the court ought to grant his motions to compel discovery on the illegal

detention claim (which is not part of this case). Dkt. No. 133.

The portion of the motion that seeks a stay of proceedings is moot, but

the court will grant the portion of the motion that seeks amendment of the

scheduling order. The court will require the two added defendants (and if the

plaintiff identifies him, the third identified C.O.) to answer or otherwise respond

to the allegations in paragraph 5 of the amended complaint (Dkt. No. 10) by the

end of the day on February 28, 2020. Once the new defendants have answered

or otherwise responded, the court will set a deadline for conducting discovery

as to the new defendants only, and will set a new dispositive motions deadline.

H. Conclusion

The court GRANTS the defendant’s motion to dismiss party. Dkt. No.

118. The court DISMISSES WITH PREJUDICE defendant Michael Hannah.

The court GRANTS the defendant’s motion to add party. Dkt. No. 118.

The court ORDERS that the clerk’s office shall add Marlon Hannah as a

defendant.

The court GRANTS the defendant’s motion to file amended answer. Dkt.

No. 125. The court ORDERS that the clerk’s office will docket the proposed

amended answer, dkt. no. 125-1, as the operative answer.

The court DENIES AS MOOT the plaintiff’s motion for recusal/motion to

clarify. Dkt. No. 121.

The court DENIES the plaintiff’s motion to compel discovery. Dkt. No.

122.

The court GRANTS defendant’s request for reasonable expenses,

including attorney’s fees, incurred in opposing the plaintiff’s motion to compel.

Dkt. No. 126. The court ORDERS that the defendant shall submit

documentation of reasonable expenses within thirty days of the date of this

order.

The court DENIES the plaintiff’s motion to add parties. Dkt. No. 124.

The court DENIES the plaintiff’s motion for leave to file amended

complaint. Dkt. No. 127.

The court ORDERS that the clerk’s office shall add defendants Michael

Huber and Michael Ninkovic in place of two of the “John Doe CO’s 1-3.”

The court GRANTS IN PART AND DENIES IN PART the defendant’s

motion to stay proceedings and amend scheduling order. Dkt. No. 132. The

court DENIES AS MOOT the defendant’s motion to stay proceedings. The court

GRANTS the defendant’s motion to amend the scheduling order.

The court ORDERS that the plaintiff must provide the court with the

identity of the third John Doe CO in time for the court to receive it by the end

of the day on January 31, 2020.

The court ORDERS that defendants Huber and Ninkovic (and any third

defendant identified by January 31, 2020) must answer or otherwise respond

to the complaint by the end of the day on February 28, 2020.

Dated in Milwaukee, Wisconsin this 6th day of January, 2020.

BY THE COURT:

Chief United States District Judge

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