United States District Court, E.D. Wisconsin
DARYISE L. EARL, Plaintiff,
BRIAN FOSTER, et al., Defendants.
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
Daryise L. Earl, a Wisconsin State prisoner who is
representing himself, filed a civil rights action under 42
U.S.C. § 1983, alleging that the defendants violated his
First and Eighth Amendment rights at the Green Bay
Correctional Institution. (Docket #15). This matter comes
before me on the plaintiff's fourth motion to compel
discovery (Docket # 100), and the plaintiff's motion to
appoint an independent medical expert (Docket # 103).
motion to compel discovery, Earl asks me to order the
defendants to: (1) “provide precise answers” to
his request for admissions regarding a phone conversation
between Nurse Mary Alsteen and Sergeant Michael Richtie that
occurred on October 13, 2014, and (2) produce an inmate
complaint filed by a different inmate regarding Alsteen's
refusal to provide medical treatment at a local hospital.
Earl explains that the defendants identified Alsteen as the
individual who was “on duty” on October 13, 2014
when Richtie called about Earl's knee injury; however,
defendants have failed to provide details about what was said
during that phone conversation. Earl also states that
Alsteen's pattern of refusing to provide medical
treatment is relevant to this litigation, therefore, he needs
a copy of an inmate complaint filed by a different inmate
regarding Alsteen's failure to provide medical care at a
explained by Judge Rudolph Randa in his decision and order
denying Earl's third motion to compel (Docket # 78), the
court cannot order defendants to provide information that
they do not possess. Alsteen states that she does not recall
the conversation that took place on October 13, 2014, and
defendants indicate that there are no records memorializing
the phone call from that day. I cannot order Alsteen to
speculate as to what may have been said in a conversation
that occurred almost two years ago that she does not
Plaintiff also asks that the details of another inmate's
grievance be compelled. He asserts that, in that case,
Alsteen claimed the inmate refused treatment at a hospital
when the inmate said just the opposite. The Defendants have
conceded that this occurred, i.e., that there is a “he
said, she said” dispute between another inmate and
Nurse Alsteen. Given this concession, it is unclear what
relevance any of the additional medical details would have.
The exact circumstances of the other inmate's condition
would not shed light on any matters pertinent to this case.
Instead, the only relevance is in the similarity of the
allegations regarding the fact that a second inmate has
accused Nurse Alsteen of lying about an inmate refusing
hospital treatment. And, given the privacy concerns
implicated by a release of another inmate's health
conditions, especially within the prison context, any
conceivable relevance is outweighed by the possible prejudice
a third party might suffer. Therefore, I must deny
plaintiff's fourth motion to compel discovery.
also asks me to appoint an independent medical expert under
Federal Rule of Evidence 706 (a). He explains that a medical
expert “would be better suited to give a[n] accurate
description of the limitations [that] Earl's injury
imposed on his ability to bend his knee or move
laterally.” Rule 706(a) gives me discretion to appoint
a medical expert in civil cases. Ledford v.
Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). However,
the fact that a medical expert would help an inmate prevail
on his claims at trial does not mean that the court must
exercise its authority under Rule 706. See id.
Indeed, a court need not appoint an expert even in cases
where the plaintiff requires an expert to prove his
case. See id.
case, Earl's claims relate to how he was treated by the
defendants following his knee injury, specifically, whether
the defendants forced him to work with an
“obvious” knee injury, and whether the plaintiff
was fired from his job in the kitchen based on his complaints
about his injury. Expert opinion is neither necessary nor
helpful regarding these factual disputes. Earl's best
source of evidence on how he was treated by defendants
following his knee injury is his own testimony explaining
what happened after he was injured. Further, swelling, knee
pain, and mobility limitations from swelling and knee pain,
are within the comprehension and personal experience of any
lay person; expert testimony is not necessary to explain
medical conditions that any lay person can understand.
See Ledford, 105 F.3d at359-60.
Rule 706(c) provides that any expert appointed by the court
is entitled to reasonable compensation. Where the plaintiff
is indigent, that cost falls to the defendants-in this case,
the State of Wisconsin. In a recent case, the final cost for
a court appointed medical expert was approximately $5, 950.
See Goodvine v. Ankarlo, Case 12-CV-1324, Docket
#167 (E.D. Wis.). Given that Earl's best evidence is his
own testimony, I cannot justify an increase in defense costs
by thousands of dollars. Therefore, I will deny the
plaintiff's motion to appoint an independent medical
THEREFORE ORDERED that the plaintiff's motion to compel
(Docket #100) is DENIED.
FURTHER ORDERED that the plaintiff's motion to appoint an