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Gulley-Fernandez v. Johnson

United States District Court, E.D. Wisconsin

March 21, 2016

DOMINIQUE DEWAYNE GULLEY-FERNANDEZ, Plaintiff,
v.
DR. TRACY JOHNSON, DR. STACEY HOEM, TORI SEBRANEK, GARY ANKARLO, DAVID GARDNER, WARDEN GARY BOUGHTON, CATHY JESS, and MARK HEISE, Defendants.

DECISION AND ORDER

HON. RUDOLPH T RANDA U.S. District Judge.

The pro se plaintiff, Dominique DeWayne Gulley-Fernandez, filed an amended complaint on January 4, 2016. (Dkt. No. 39.) He is proceeding on Eighth Amendment claims that the defendants have failed to treat his gender identity disorder and mental health issues at the Wisconsin Secure Program Facility. (Dkt. No. 43 at 2.) The plaintiff has filed several motions, and the defendants have filed a motion to consolidate this case with Gulley-Fernandez v. Johnson, Case No. 15-cv-995-RTR (E.D. Wis.). All of these applications will be addressed herein.

Proposed Amended Complaint

On February 1, 2016, the plaintiff filed a proposed amended complaint. (Dkt. No. 42.) This pleading raises the same claims as the operative amended complaint (Dkt. No. 39), and it appears redundant. In addition, the plaintiff did not file a motion to amend the complaint, as required by the Local Rules. See Civil L.R. 15(a) (E.D. Wis.). Moreover, as set forth below, the Court is granting the defendants’ motion to consolidate this case with the plaintiff’s other case (15-cv-995-RTR), and directing the plaintiff to file a comprehensive amended complaint. For all of these reasons, the Court will not consider the plaintiff’s February 1, 2016, proposed amended complaint as the operative complaint in this action.

Plaintiff’s Motion to Dismiss Defendants

On February 4, 2016, the plaintiff filed a motion to dismiss three defendants: David Gardner, Troy Hermans, and Gary Boughton. (Dkt. No. 44.) Troy Hermans is not a defendant in this case. Although the plaintiff’s request may be accomplished without a court order, see Fed. R. Civ. P. 41(a)(1)(A)(i), the Court will grant the motion and dismiss defendants Gardner and Boughton from the action.

Plaintiff’s Motion for Appointment of Counsel

On February 11, 2016, the plaintiff filed a motion for pro bono counsel. (Dkt. No. 46.) He contends that because he is not a lawyer he will be unable to adequately present his arguments to the Court. The plaintiff also states that he unsuccessfully attempted to find an attorney on his own.

In a civil case, the Court has discretion to decide whether to recruit a lawyer for someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C § 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). First, however, the person has to make a reasonable effort to hire private counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). After the plaintiff makes that reasonable attempt to hire counsel, the court then must decide “whether the difficulty of the case - factually and legally - exceeds the particular plaintiff’s capacity as a layperson to coherently present it.” Navejar, 718 F.3d at 696 (citing Pruitt, 503 F.3d at 655). To decide that, the court looks not only at the plaintiff’s ability to try his case, but also at his ability to perform other “tasks that normally attend litigation, ” such as “evidence gathering” and “preparing and responding to motions.” Id.

The plaintiff’s filings throughout this case have been very good. They demonstrate that while he alleges he has a mental illness, he understands his claims and can ably present them to the Court at this stage. The plaintiff cites case law and submits documents related to his claims. The Court concludes that he may proceed on his own at this time. Accordingly, his motion to appoint counsel will be denied without prejudice.

Plaintiff’s Motion for Medical Expert

On February 16, 2016, the plaintiff filed Motion for Diagnostic Evaluation by an Outside Independent, Trained and Qualified Licensed Psychologist and Psychiatrist. (Dkt. No. 50.) He requests that the Court order that he be evaluated by a psychologist and psychiatrist at the Wisconsin Resource Center. The plaintiff asserts that he does not want to be re-evaluated by a clinician at the Wisconsin Secure Program Facility. He would like the defendants to “make a referral for him to be re-evaluated for PTSD, Bipolar Disorder, OCD, ADHD, and possibly psychopathy/psychotic disorder.” (Dkt. No. 50 at 4.) According to the plaintiff, a referral is the only way to confirm or defer/deny his allegations.

The plaintiff filed the same motion in his other case, Gulley-Fernandez v. Johnson, Case No. 15-cv-995 (E.D. Wis.). In that case, the defendants filed a comprehensive response brief together with evidence showing that the plaintiff has received treatment for his gender dysphoria since he first requested treatment for it on May 18, 2015. (Case No. 15-cv-995, Dkt. No. 56.) The defendants’ materials also show that the ...


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