Fleming, Dwaun v. Cullen, Joseph

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DWAUN E. FLEMING, SR.,
Plaintiff,
v.
JOSEPH P. CULLEN,
Defendant.
OPINION and ORDER
24-cv-357-wmc
Plaintiff Dwaun Fleming, Sr., is an inmate proceeding without counsel on Eighth
Amendment and state-law medical malpractice claims against defendant Joseph Cullen for
allegedly botching his hand surgery in October 2015, refusing his requests for additional
treatment in 2016 and 2018, and leaving him in pain and in need of a bone replacement. Now
plaintiff moves: (1) for leave to amend his complaint (dkt. #38); (2) to transfer venue to a
more convenient forum (dkt. #67); and (3) for my recusal (dkt. #79). Defendant both opposes
plaintiff’s motions and affirmatively moves: to dismiss plaintiff’s amended complaint under
Fed. R. Civ. P. 12(b)(1) and (6) for his failure to satisfy the state action requirement for
constitutional claims under 42 U.S.C. § 1983, and his failure to file this action within the
applicable statute of limitations period (dkt. #48); or alternatively, for summary judgment on
the grounds that plaintiff failed to exhaust his administrative remedies under the Prison
Litigation Reform Act (“PLRA”) with respect to his constitutional claim (dkt. #45). For the
reasons explained below, plaintiff’s motions for recusal and for leave to amend will be denied,
and defendant’s motion to dismiss plaintiff’s federal claim for lack of subject matter jurisdiction
will be granted, making it unnecessary to address the parties’ motions regarding the statute of
limitations, exhaustion, and transfer of venue, which will be denied as moot. Finally, because
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the court is dismissing plaintiff’s federal law claim, it will decline to exercise supplemental
jurisdiction over plaintiffs’ state-law claim and close this case.
OPINION
I. Recusal
To begin, plaintiff contends in his motion for recusal that it would be a conflict of
interest for me to preside over this lawsuit based on recent rulings regarding his requests for
subpoenas and court assistance in recruiting counsel, both of which were unfavorable to
plaintiff, apparently leading him to conclude that this court is somehow biased and prejudiced
against him. See 28 U.S.C. §§ 144 and 455(a) and (b)(1) (judges must disqualify themselves
in proceedings in which they have personal bias or prejudice and impartiality might be
reasonably questioned). However, the fact that this court denied a few of plaintiff’s motions
in this case does not warrant my recusal. Far from it, unfavorable “judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion”; instead, “they are proper grounds
for appeal, not for recusal.” Liteky v. United States, 510 U.S. 540, 555 (1994). Moreover, in
making its rulings, this court has neither relied on any knowledge acquired outside the
proceedings, nor displayed deep-seated and unequivocal antagonism that would render fair
judgment impossible. See id. (explaining requirements for establishing bias and impartiality).
Does this court harbor any bias or prejudice toward either side in this lawsuit. Having failed
to establish any bias against him, plaintiff’s motion for recusal will be denied.
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II. Jurisdiction
Next, to bring a claim for relief under 42 U.S.C. § 1983, plaintiff must establish that
defendant was acting “under the color of state law” when he deprived plaintiff of a right secured
by the Constitution or the laws of the United States. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015). Here, both defendant and Theresa Parry, the practice
administrator of the Hand to Shoulder Center of Wisconsin where plaintiff was treated by
defendant, aver that: Cullenis a privately-employed surgeon with the Center; neither defendant
nor the Center has ever had a contract or other agreement to provide medical care to inmates
with the Wisconsin Department of Corrections or any of the institutions at which plaintiff has
been incarcerated; and neither defendant nor the Center voluntarily accepted or assumed the
responsibility to provide such care. (See dkt. ##49-50.) Further, plaintiff has failed to refute
this evidence at summary judgment.
Instead, plaintiff focuses on the fact that he had an ongoing treatment relationship with
Dr. Cullen before his incarceration, and Dr. Cullen terminated that relationship by refusing to
see plaintiff after plaintiff was incarcerated. While plaintiff seeks to hold defendant liable under
state law for this abrupt change in their relationship, plaintiff states no federal claim under
§ 1983, having offered no proof defendant was ever acting “under color of state law” during
any of the events challenged in this lawsuit. More specifically, undisputed evidence shows that:
plaintiff was not incarcerated when Dr. Cullen performed the allegedly botched surgery in
October 2015; and Dr. Cullen did not assume any responsibility for plaintiff’s care in either
2016 or 2018, when plaintiff sought treatment while incarcerated. Therefore, the court must
dismiss plaintiff’s federal claim without prejudice.
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This leaves only plaintiff’s state-law claim for medical malpractice, over which this court
has no subject matter jurisdiction since it sounds in state law and plaintiff has not alleged or
otherwise shown diversity jurisdiction exists over that claim. See 28 U.S.C. § 1332. Of course,
“[w]hen federal claims drop out of the case, leaving only state-law claims,” this court retains
“broad discretion to decide whether to keep the case or relinquish supplemental jurisdiction
over the state-law claims.” RWJ Mgmt. Co. v. BP Prods N. Amer., Inc., 672 F.3d 476, 478 (7th
Cir. 2012). Having been dismissed before trial, however, “the presumption is that the court
will relinquish federal jurisdiction over any supplemental state-law claims.” Id. at 479 (citation
omitted).
Because plaintiff has failed to state a federal claim and neither party identifies any
unusual circumstances that would justify retaining jurisdiction over plaintiff’s state-law claim,
the court will relinquish its supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3); Burritt v.
Ditlefson, 807 F.3d 239, 252 (7th Cir. 2015) (absent good grounds, the better practice is for a
district court to relinquish supplemental jurisdiction over state claims once federal claims are
dismissed).
Finally, while the court of appeals has warned district courts about dismissing a pro se
litigant’s complaint without giving the plaintiff a chance to amend, Felton v. City of Chicago, 827
F.3d 632, 636 (7th Cir. 2016), any amendment here would be futile. Accordingly, the case
will be dismissed.
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ORDER
IT IS ORDERED that:
1) Plaintiff Dwaun Fleming, Sr.’s motion for leave to amend his complaint (dkt. #38)
and motion for recusal (dkt. #79) are DENIED.
2) Defendant Joseph Cullen’s motion to dismiss (dkt. #48) plaintiff’s federal claim for
lack of subject matter jurisdiction is GRANTED and the federal claim is
DISMISSED without prejudice.
3) Plaintiff’s state-law medical malpractice claim is DISMISSED without prejudice
under 28 U.S.C. § 1367(c)(3).
4) Plaintiff’s motion to transfer venue (dkt. #67), defendant’s motion to dismiss
plaintiff’s complaint on statute of limitations grounds, and defendant’s motion for
summary judgment on exhaustion grounds (dkt. #45) are DENIED as moot.
5) The clerk of court is directed to enter final judgment in favor of defendant and close
this case.
Entered this 10th day of December, 2025.
BY THE COURT:
/s/
_________________________________
WILLIAM M. CONLEY
District Judge
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