O'Neal v. Atwal, -5 C 739 C.

• Decision Date: 04 April 2006
• Docket Number: No. -5 C 739 C.,No. 06 C 40 C.,-5 C 739 C.,06 C 40 C.
• Parties: Wendell Dwayne O'NEAL 202 Honorway Madison, Alabama 35758, Plaintiff, v. Tony ATWAL, Mark F. Anderson, Lawrence Hammerling and State Public Defender Office, 2221 University Ave., Southeast Suite 425 Minneapolis, MN 55414, jointly and severally, Defendants. Wendell Dwayne O'Neal, 202 Honorway Madison, Alabama 35758, Petitioner, v. Unknown Superamerica Employees, 38th & Freemont Ave., Minneapolis, Mn., Two Unknown Minneapolis Police Officers, Minneapolis Police Dept., City of Minneapolis, Minneapolis, Minnesota, 55401, Unknown Hennepin County Asst. D.A., Hennepin County D.A. Office, Gov. Centre, 300 S., 6th Street, Minneapolis, Minnesota, Unknown Hennepin County Deputy Sheriff, Hennepin County Sheriffs Dept., County of Hennepin, Minneapolis, Mn., Jointly/Severally/Officially, as Agents/Agencies/Municipalities, Respondents.
• Court: U.S. District Court — Western District of Wisconsin

425 F.Supp.2d 944

Wendell Dwayne O'NEAL 202 Honorway Madison, Alabama 35758, Plaintiff, v. Tony ATWAL, Mark F. Anderson, Lawrence Hammerling and State Public Defender Office, 2221 University Ave., Southeast Suite 425 Minneapolis, MN 55414, jointly and severally, Defendants.

Wendell Dwayne O'Neal, 202 Honorway Madison, Alabama 35758, Petitioner, v. Unknown Superamerica Employees, 38th & Freemont Ave., Minneapolis, Mn., Two Unknown Minneapolis Police Officers, Minneapolis Police Dept., City of Minneapolis, Minneapolis, Minnesota, 55401, Unknown Hennepin County Asst. D.A., Hennepin County D.A. Office, Gov. Centre, 300 S., 6th Street, Minneapolis, Minnesota, Unknown Hennepin County Deputy Sheriff, Hennepin County Sheriffs Dept., County of Hennepin, Minneapolis, Mn., Jointly/Severally/Officially, as Agents/Agencies/Municipalities, Respondents.

No. -5 C 739 C.

No. 06 C 40 C.

United States District Court, W.D. Wisconsin.

April 4, 2006.

Wendell D. O'Neal, Madison, WI, pro se.

ORDER

CRABB, District Judge.

Plaintiff Wendell Dwayne O'Neal is homeless. In mid to late December 2005 and early January of this year, he filed a number of complaints and amended complaints in this court, while he was taking shelter in one of Madison, Wisconsin's homeless shelters. On his complaints, he lists his address as 202 Honorway, Madison, Alabama. However, he has not been in Alabama since filing his complaints. Indeed, it is not clear when he was last in Alabama.

On January 13, 2006, I allowed him to proceed in forma pauperis in case no. 05-C-739-C, against defendants Atwal, Anderson and Hammerling, on a claim that these defendants intentionally inflicted emotional harm on plaintiff while plaintiff was in Minnesota. In the same order, I gave plaintiff until February 13, 2006, in which to complete blank Marshals Service and summons forms so that his complaint could be served on the defendants. Later, on March 8, 2006, I extended to March 17, 2006, the time within which plaintiff was to complete and return the necessary forms. In the same order, I stayed a decision on a motion plaintiff had filed seeking consolidation of case no. 05-C-739-C with another of his cases, O'Neal v. Minneapolis Police Department, 06-C-40-C.

In case no. 06-C-40-C, plaintiff sued a number of individuals, all of whom appear to reside in Minnesota. However, plaintiff did not identify any one of the defendants by name, making it impossible to serve his complaint upon any one of them. In an order dated March 14, 2006, I dismissed plaintiff's complaint without prejudice to his filing a new complaint, on or before April 4, 2006, in which he lists the individual defendants by their names. I told plaintiff that if he was unable to learn the defendants' names, he could list them as "John Doe" or "unknown." However, in that instance, I advised plaintiff that he would have to explain what steps he had taken to learn the identities of the defendants. This is because a plaintiff has 120 days from the date he files his complaint in which to serve the defendants. Fed. R.Civ.P. 4(m). If the complaint is not served within that time, upon its own initiative after notice to the plaintiff, the court must dismiss the action without prejudice unless it appears clear that service can be effected promptly thereafter.

Throughout the now nearly four months that these cases have been submitted to this court, the court has had difficulty maintaining any reliable form of communication with plaintiff because of his lack of a permanent address and his distance from Alabama. Now plaintiff has filed in case no. 05-C-739-C a document titled "Time Extension Motion." In this document, plaintiff states that on March 4, 2006, he was arrested by a state trooper in Tomah, Wisconsin and transported to Hennepin County, Minnesota to answer charges that he had violated the terms of a sentence of probation he received in connection with a conviction in Minnesota. For this reason, he has been unable to comply with the court's orders in case nos. 05-C-739-C and 06-C-40-C.

From the documents attached to plaintiffs motion, it appears that on March 16, 2006, the charges against plaintiff were dropped and plaintiff was released on the conditions that he follow the recommendations of his probation officer and remain law abiding. The address plaintiff shows on the document is 1738 Roth Street, Madison, Wisconsin (the homeless shelter address). However, that is not an address at which plaintiff is currently staying. He has contacted the office of the clerk of court by telephone to advise that he does not have a street address and to ask that documents from the court be faxed to him in Minnesota.

The difficulty with plaintiffs request for a time extension is that he offers no idea when he will be situated in an environment that will allow him the time he needs to respond in a timely fashion to the court's orders. The 120-day rule for completing service of process is just one of a number of rules in the Federal Rules of Civil Procedure requiring that the parties act within established deadlines in the course of litigation. In addition, this court keeps close watch over its cases and requires that the parties move them persistently and diligently to resolution. It is simply not feasible for the court and defendants to wait for plaintiff to call periodically from a shelter or a pay phone to let us know where he is so that orders entered by the court and documents filed by the defendants can be sent to him. Under plaintiffs present circumstances, where basic human needs for survival are his foremost concern, it appears improbable that plaintiff will be able to attend to his cases as he must if he is to prosecute them in this court. Nevertheless, I will offer plaintiff one more opportunity to comply with this court's orders and to provide an address at which he is certain to receive communications from the court and the defendants so that he can timely respond to them. If plaintiff does not comply with this order within the time allowed, I will dismiss his cases without prejudice to his refiling them at some future date when his living circumstances have stabilized.

One last matter requires attention, however. Plaintiffs recent return to Minnesota, albeit against his will, raises a question whether this court does, in fact, have jurisdiction under the diversity statute to entertain his claims under state law against various citizens of...