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Williams v. Swenson

United States District Court, E.D. Wisconsin

May 26, 2016

TRAVIS DELANEY WILLIAMS, Plaintiff,
v.
REBECCA SWENSON, DR. JANE DOE, NURSE JANE DOE 2, NURSE JULIE, CORPORAL PARKER, DAVID G. BETH, GUARD ULEMAN, and KURT MIKUTIS, Defendants.

         ORDER DENYING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT (DKT. NO. 14); DENYING PLAINTIFF’S MOTION TO ADD CLAIMS (DKT. NO. 29); DENYING PLAINTIFF’S MOTION FOR COURT RULING (DKT. NO. 30); DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ BRIEF (DKT. NO. 40); DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 41); DENYING AS MOOT PLAINTIFF’S MOTION FOR LEAVE TO FILE OVERSIZED BRIEF, MOTION FOR EXTENSION OF TIME, AND MOTION FOR TEMPORARY RESTRAINING ORDER (DKT. NO. 45); DENYING PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 47); DENYING PLAINTIFF’S MOTION FOR DISCOVERY (DKT. NO. 59); GRANTING DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S REPLY BRIEF (DKT. NO. 72); GRANTING DEFENDANTS’ MOTION TO DEPOSE INCARCERATED PERSON (DKT. NO. 74); DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 76); DENYING PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 78); DENYING PLAITNIFF’S MOTION TO COMPEL (DKT. NO. 81); DENYING PLAINTIFF’S MOTION TO STAY (DKT. NO. 82); GRANTING PLAINTIFF’S MOTION FOR ORDER (DKT. NO. 83); AND DENYING WITHOUT PREJUDICE MEDICAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT WITH LEAVE TO RE-FILE (DKT. NO. 33)

          HON. PAMELA PEPPER United States District Judge

         The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights in preparation for and during time he spent at the Kenosha County Jail (Jail). The court screened the plaintiff’s complaint on September 10, 2015, and allowed him to proceed on claims regarding the medical care he received at the Jail. Dkt. No. 12.

         I. Plaintiff’s Motion to Amend (Dkt. No. 14)

         On September 21, 2015, the plaintiff filed a motion to amend the complaint, along with a one-page inmate/detainee medical request from the Jail. Dkt. No. 14. The plaintiff makes specific arguments regarding his claims against certain defendants, and argues that the court should not have dismissed Nurse Jane Doe 1 and Corporal Garvela. Id. at 1-3. The plaintiff argues that the court applied a standard to his complaint far above what should be expected of a pro se litigant, and he asks for an opportunity to amend his complaint. Id. at 3-4. He says this is the third complaint the court has misconstrued, or in which it has stated something in its error that he did not say in complaint to rule against him. Id. at 4.

         The court construes this pleading as a motion to amend the complaint. The court will deny the motion, because plaintiff did not comply with Civil Local Rule 15(a), which requires that the plaintiff must attach to a motion to amend the complaint a proposed amended complaint.

         The court also could have construed the plaintiff’s pleading as a motion for reconsideration under Federal Rule of Civil Procedure 54, which allows the court to revise any order adjudicating fewer than all the claims at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. In order for the court to grant a Rule 54 motion, however, the plaintiff would have to have shown “manifest errors of law or fact” in the court’s screening order or presented any newly discovered evidence. See Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987) (citation omitted). He has not done so.

         The court will deny this motion.

         II. Motion Response (Dkt. No. 29) and Motion to Strike (Dkt. No. 40)

         The DOC defendants filed their answer on November 2, 2015. Dkt. No. 27. Two weeks later, the plaintiff filed a document entitled “Motion Response to Defendants.” Dkt. No. 29. The second full paragraph of that motion states, “I ask the court pursuant to Fed. R. Civ. Pro 18 to add the claims of the action of Defendant Kurt Mikutis of an 8-28-15 first degree attempted murder 9420.01(1)(A) by toxic’s, retaliation for continuing prior litigation, along with Defendant Corporal Darvela [sp].” Id. He then responds to each section of the defendants’ answer and talks about the ways in which the court erred in its screening order. Toward the end of the response, he discusses in detail why he believes he ought to be able to obtain damages from defendant Beth. Id. at 9-18. Throughout the motion, he makes reference to several other defendants, and to a number of different incidents. He ends the motion by asking the court to “allow those new claims while dismissing the defendants affirmative defenses.” Id. at 22. He also asks the court to set a date for the defendants to answer the new claims, and to set dates for discovery and trial. Id.

         The defendants filed a brief in opposition to the plaintiff’s “Motion Response to Defendants.” Dkt. No. 31. They construed the motion response as a motion to join claims, and perceived that the plaintiff was trying to add into his complaint new claims against defendants Mikutis and Garvela regarding something that happened on August 28, 2015. Id. at 2-3. The defendants argued that the court should not allow the plaintiff to join these new claims, because he was trying to join different actions against different parties based on different facts, in violation of Fed.R.Civ.P. 18(a). Id. at 3. The defendants also argued that even if the plaintiff filed these claims in a separate lawsuit, they would not survive a motion to dismiss.

         On December 31, 2015, the plaintiff filed a motion to strike the defendant’s opposition brief. Dkt. No. 40. He argues that the claims he wants to bring would survive a motion to dismiss, and reiterated some of the facts he asserted in his motion response. Id.

         It is difficult for the court to separate out, in the twenty-two pages of the motion response, what claims the plaintiff wants to add against what defendants for what events. He may want to add claims against Mikutis (and possibly Beth) in their individual capacities for an incident which took place during a separate stay at the Jail in August 2015, during which the plaintiff was taken to an extremely high security segregation cell block, placed in an unclean cell, laughed at when he asked to move, and told to quit filing lawsuits. The plaintiff flooded the cell and turned over the garbage can, and its contents mixed with the water and ran under the door and went into the hallway and made the guards sick. They gagged and ran out of the hall, and the plaintiff was left there for another hour even after the other inmates were evacuated.

         The defendants argue that if the plaintiff wants to add claims based on that incident, the court should deny his request, because those claims are unrelated to the claims in the plaintiff’s initial complaint. Dkt. No. 31 at 3. They argue that such claims, even if they are made against some of the same defendants that the defendant named in the initial complaint, would not be properly joined under Federal Rule of Civil Procedure 18. Id. at 3-4. The defendants also suggest that amendment would be futile, because the plaintiff is trying to add criminal charges to this civil case, id.; they note (correctly) that only prosecutors (district attorneys) have the authority to file criminal charges; criminal statutes do not create private causes of action. Id. at 4.

         To the extent that it understands what the plaintiff wishes to do, the court agrees that he is trying to join unrelated claims. Under Rule 18(a), “[u]nrelated claims against different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). For example, “multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” Id. The court will deny the plaintiff’s motion response to the extent that it asks to add new claims relating to the incident in August 2015, Dkt. No. 29, and denies the plaintiff’s motion to strike the defendants’ opposition brief, Dkt. No. 40.

         The court also notes that the civil procedure rules do not provide for a plaintiff to file a “response” to the defendants’ answer. Once all the defendants in a case have answered the complaint, the court issues a scheduling order, which sets out deadlines for conducting discovery and for filing motions (such as summary judgment motions). If the defendants file a motion for summary judgment, the plaintiff will have an opportunity to dispute their version of events in his response. If the case survives summary judgment and goes to trial, the plaintiff will have the opportunity to present his case at trial. Until all of the defendants have answered and the court has issued a scheduling order, however, it is too soon for the court to make any decisions about who did what to whom.

         III. Motion for Court Ruling (Dkt. No. 30)

         On December 7, 2015, the plaintiff filed a motion asking for a court ruling on his response to the DOC defendants’ answer. Dkt. No. 30. The court is, as it discussed above, denying the “motion response, ” despite the fact that the rules do not allow a plaintiff to file a “response” to a defendant’s answer. Accordingly, the motion for an order is moot.

         IV. Motion to Appoint Counsel (Dkt. No. 41)

         On December 31, 2015, the plaintiff filed a motion asking the court to appoint counsel, along with a supporting declaration and brief. Dkt. No. 41. The plaintiff argues that he is unable to afford counsel, that the issues in this case are complex, and that he has sought counsel for well over a year. Id. The plaintiff also tells the court that he is a handicapped person who is being denied the use of a wheelchair in retaliation for complaining about his health. Id. He says that the wheelchair denial means he has no access to the law library or to other inmates who can assist him. Id. He also states that he broke his hand in August 2015, that he is in constant pain due to no medical care for this, and that he cannot effectively write. Id.

         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). The plaintiff refers the court to letters from attorneys, which he filed in his other cases, as proof of his attempts to secure counsel on his own. Although requests for representation should be case-specific, the court finds that the plaintiff has met the threshold requirement under Pruitt.

         As a result, the court 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.

         In this motion to appoint counsel and the supporting documents, the plaintiff makes a number of serious allegations regarding his current conditions at Columbia Correctional Institution. But the allegations in his complaint-the allegations in the lawsuit he has brought-are about the plaintiff’s interactions with staff at the Kenosha County Jail. If he has separate retaliation or access to the courts claims against staff members at Columbia, the plaintiff must bring those allegations in a new, different complaint.

         This court must limit its inquiry to whether the plaintiff is competent to litigate this particular case, which involves medical claims against the individual defendants and Monell claims against defendants Sheriff David Beth and Sgt. Mikutis in their official capacities. The court finds, at this stage of the case, that the plaintiff has demonstrated that he is able to litigate this case on his own. The plaintiff has filed numerous handwritten documents in this case. He includes many facts and legal citations in each document he files. The court can read his handwriting. The only difficulty the court encounters in understanding the plaintiff’s pleadings is the fact that he includes so much information, and so many allegations about so many different people, institutions and events, that the court finds it hard to separate the information. The plaintiff writes lucidly, and even filed a complete response to the defendants’ motion for summary judgment, including a brief, a response to the defendants’ proposed findings of fact, a sworn declaration, and exhibits.

         Almost every prisoner who files a complaint asks the court to appoint counsel. The majority of prisoners don’t have any money, cannot afford to hire lawyers, and do not have legal training themselves. Many have physical difficulties, many have a hard time accessing the law library. In an ideal world, the court either would have money available to hire counsel for prisoner plaintiffs, or would have enough volunteer lawyers to appoint counsel to represent every prisoner who asks for one. But the court does not have either of those resources.

         At this point, it appears to the court that the plaintiff is able to represent himself. The court will deny the motion to appoint counsel at this time, without prejudice to the plaintiff renewing the motion if the ...


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