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Mitchell v. Kallas

United States District Court, W.D. Wisconsin

August 17, 2016

ROY MITCHELL, Plaintiff,
v.
KEVIN KALLAS, et al. Defendants.

          ORDER

          WILLIAM M. CONLEY District Judge.

         Plaintiff Roy Mitchell has been permitted to proceed on her Eighth Amendment claims that defendants, Drs. Kevin Kallas and Dawn Laurent, failed to treat her for gender dysphoria while she was incarcerated by the Wisconsin Department of Corrections (“DOC”). The court has taken the parties’ cross motions for summary judgment under advisement, but plaintiff currently has several other pending motions, which the court will now address: (1) Motion to Compel (dkt. #85); (2) Motion Re Imminent Danger (dkt. #123); (3) Motion for Assistance in Recruiting Counsel (dkt. #125); (4) Motion to Reinstate Defendant Wall (dkt. #135); (5) Motion to Reinstate Probation Agents as Defendants (dkt. #140); (6) Motion to Disclose Expert Witness Information (dkt. #145); and (7) Motion for Sanctions (dkt. #147).

         Motion to Compel (dkt. #85)

         In her Motion to Compel, Mitchell is claiming that defendants have not been forthcoming in their response to one of her documents requests. Mitchell’s Document Request No. 3 sought documentation related to the defendants’ liability insurance for 2012, 2013 and 2014. While defendants objected to the request, they also explained that the “State of Wisconsin is self-insured and Drs. Kallas and Laurent are indemnified by the state pursuant to Wis. Stats. § 893.82.” (Dkt. #94.) They have since corrected this response to state that they are indemnified pursuant to Wis.Stat. § 895.46, but reaffirmed that the state is self-insured for damages resulting from the acts of its employees. As Mitchell’s claims against Drs. Kallas and Laurent relate only to their acts as employees of the State of Wisconsin, the court agrees with defendants that any other liability insurance policy information is not relevant to her claims. This motion is, therefore, denied.

         Motion Re Imminent Danger (dkt. #123)

         In this motion, Mitchell complains that her probation agent is forcing her to stay in a men’s shelter, which she claims is a form of retaliation for the current lawsuit. Mitchell also alleges that she suffers from Post-Traumatic Stress Disorder (“PTSD”), anxiety and nightmares because she has been sexually assaulted there. Understandably enough, she maintains that a male shelter is not the appropriate place for a transgender female, such as herself. Mitchell’s motion includes a letter dated April 6, 2015, from a University of Wisconsin-Madison law student who works with the law school’s domestic abuse injunction clinic. In the letter, the student states that Mitchell told him that her parole agent, Sarah Wesenberg, and her supervisor, Tina Gensler, were forcing her to stay in the men’s shelter, and that Mitchell had been sexually assaulted there. Accordingly, it appears that Mitchell would like the court to order her probation agents to find another, more suitable, residence for her.

         Despite the possible merit in a transfer, the court cannot grant this request for two reasons. First, Wesenberg and Gensler are not parties to this lawsuit. This court only has jurisdiction over Mitchell’s claims in her complaint, which relate to decisions by DOC employees, who allegedly denied Mitchell with needed hormone treatment while she was incarcerated. Her complaint neither names Wesenberg or Gensler as defendants, nor does it include allegations that these individuals forced her to stay in a men’s shelter. As importantly, the court has not given Mitchell leave to proceed against those state probation officers in this court. If Mitchell believes that she has a claim against Wesenerg or Gensler that can be properly brought before this court, she needs to file a separate lawsuit as to those claims.

         Finally, although her safety concern may have been valid when she filed this motion, it became moot very shortly thereafter. Mitchell filed this motion on February 22, 2016, but she informed the court that as of March 8, 2016, she had been arrested and was placed at the Dane County Jail. Her address has remained the same since that date. As she is currently in jail and it does not appear that she will be released in the near future, her concerns about being required to stay in a men’s shelter are moot, and this motion must be denied.

         Motion for Assistance in Recruiting Counsel (dkt. #125)

         Mitchell indicated that she has contacted mulitple attorneys and the ACLU in attempts at retaining counsel. One of the attorneys she contacted was Rachel Graham, of the law firm of Quarles & Brady. Mitchell states that Ms. Graham told her that Quarles & Brady would be willing to represent her in this matter, but only by order of the court. Thus, it appears that Mitchell has fulfilled the Jackson requirement.

         The next question is whether litigating this case is beyond plaintiff’s capabilities. Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc) (the central question in deciding whether to request counsel for an indigent civil litigant is “whether the difficulty of the case - factually and legally - exceeds the particular plaintiff’s capacity as a layperson to coherently present it to the judge or jury himself”). Although it is apparent from her filings that Mitchell has been frustrated with her lack of resources throughout the course of this lawsuit, the requirements of the claims she is litigating do not exceed her abilities.

         As an initial matter, Mitchell must be aware that these are challenges nearly all pro se litigants face, and this court receives many more requests for counsel than the small pool of available volunteers can accommodate. Thus, only those cases presenting exceptional circumstances can be considered for court assistance in recruiting volunteer counsel. For the following reasons, Mitchell’s case does not appear to fall into this category.

         For one, Mitchell has been involved in other lawsuits before this court and her filings indicate familiarity with the Federal Rules of Civil Procedure. It also appears that she has successfully utilized the discovery process, not just propounding discovery requests upon defendants and obtaining materials relevant to her claims, but as noted above, drafting and filing a motion to compel where dissatisfied with defendants’ response. Although she may not have succeeded, her motion has established that she is fully capable of requesting court assistance where necessary.

         As to her familiarity with the substantive law, Mitchell’s remaining claims are straightforward. She is alleging that when defendants Dr. Kallas and Dr. Laurent denied her hormone treatment requests, they exhibited deliberate indifference to her gender dysphoria in violation of her Eighth Amendment rights. Mitchell’s summary judgment filings cite relevant ...


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