United States District Court, E.D. Wisconsin
AND ORDER DENYING PLAINTIFF'S MOTION TO COMPEL (DKT. NO.
52), DENYING PLAINTIFF'S MOTION TO STAY (DKT. NO. 61),
DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT
COUNSEL (DKT. NO. 66), GRANTING PLAINTIFF'S MOTION TO
EXTEND DISCOVERY (DKT. NO. 67), DENYING PLAINTIFF'S
MOTION TO STRIKE (DKT. NO. 71), AND SETTING NEW DEADLINES FOR
DISCOVERY AND DISPOSITIVE MOTIONS
PAMELA PEPPER United States District Judge.
April 19, 2016, the court entered a scheduling order setting
a discovery deadline of August 22, 2016, and a dispositive
motion deadline of September 22, 2016. Dkt. No. 51.
April 25, 2016, the plaintiff filed a motion to compel. Dkt.
No. 52. He argues that the defendants have ignored a set of
discovery requests he made on January 11, 2016. Id.
He asks the court to compel the defendants to produce
numerous documents. Id. at 1-2. The defendants argue
they never were served with these discovery requests and that
none of the defendants had filed a notice of appearance or
appeared in this case on January 11, 2016. Dkt. Nos. 54, 56.
Discovery requests must be served on the defendants, not just
filed with the court; filing discovery requests with the
court does not obligate defendants to respond.
fact, the court advised the plaintiff in its February 9, 2016
order that he “should serve his discovery requests
(including his list of documents that he wants them to
produce) on the defendants” after the court issued a
scheduling order. Dkt. No. 29 at 15-16. The court also told
the plaintiff, “It is too soon for the plaintiff to
serve those demands now; the defendants are not even aware
that he has sued them.” Id. at 16.
before filing a motion to compel, a party must meet and
confer, or attempt to meet and confer, with the opposing
party in an attempt to resolve any discovery dispute before
bringing a motion. See Fed.R.Civ.P. 37(a)(1); Civil
L. R. 37 (E.D. Wis.). The plaintiff did not provide a
certification with his motion detailing his attempts to meet
and confer with the defendants. Instead, the plaintiff filed
this motion less than a week after the court entered its
scheduling order. The court will deny the plaintiff's
motion to compel. Dkt. No. 52.
24, 2016, the plaintiff filed a motion to stay all
proceedings in this case under Federal Rule of Civil
Procedure 62. Dkt. No. 61. This confusing motion suggests
that staff at Columbia Correctional Institution (CCI) are
tampering with his outgoing mail, and that the plaintiff
plans to file a lawsuit against them in the Western District
of Wisconsin. He wants this court to stay this case until he
does that. He also asks this court to stay this case until
the Business Office at CCI approves a legal loan so he can
mail correspondence to the defendants.
initial matter, Rule 62 allows courts to stay proceedings to
enforce a judgment, and it does not apply here (there is no
judgment for the court to enforce). In any event, the court
will not stay this case while the plaintiff negotiates the
prison process of obtaining a legal loan or while he pursues
separate claims in the Western District of Wisconsin. The
court will deny this motion. If, in the future, the plaintiff
is concerned that the court or the defendants have not
received documents he mails to them, he should check with the
court or those parties before filing a motion.
August 22, 2016--the discovery deadline--the court received
from the plaintiff a motion to appoint counsel and a motion
to extend discovery. Dkt. Nos. 66, 67. In his motion to
appoint counsel, the plaintiff asserts that the defendants
are recording his conversations and conspiring with CCI staff
to have him placed in segregation. Dkt. No. 66. The plaintiff
represents that he wrote letters to three attorneys with no
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 has done so.
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.
plaintiff he asks the court to appoint counsel in this case
and in Case No. 14-cv-792 (E.D. Wis.) due to the
“malicious tactics” one of the defendant's
attorneys has employed. Dkt. No. 66 at 4. This is not a
reason for the court to recruit pro bono counsel.
plaintiff's incarceration means that there are
limitations on his ability to litigate, including temporary
placement in segregation that limits the ability to produce
documents. However, those limitations alone do not mean the
plaintiff is unable to litigate this case, and he has been
able to effectively communicate with the court and conduct
discovery in this case. The court will deny the
plaintiff also asks the court to extend the discovery
deadline until January 2017 due to his placement in
segregation, his limited law library time, and the case he
filed in the Western District of Wisconsin against fifty-four
defendants who work at CCI, including the law librarian. Dkt.
No. 67 at 1. The court concludes that there is good cause to
extend the discovery deadline. See Fed.R.Civ.P.
6(b)(1)(A). However, the court does not believe the plaintiff
needs another three months (more than four months beyond the
original deadline). The court will extend the discovery
deadline to Monday, November 21, 2016. All discovery requests
must be served early enough that the responses will be due on
or before that date. That means that the plaintiff has
approximately a month to prepare and serve any written
discovery responses. The court also will extend the deadline
for filing dispositive motions to Wednesday, December 21,
the court will deny the plaintiff's motion to strike
portions of the defendants' response to his motion to
appoint counsel and motion to extend discovery. Although the
plaintiff disagrees with factual assertions made by the
attorney for the Racine County defendants, motions to strike
are disfavored. In any event, the court's ...