United States District Court, W.D. Wisconsin
MUSTAFA-EL K.A. AJALA, formerly known as DENNIS E. JONES-EL, Plaintiff,
UW HOSPITAL AND CLINICS, SUTCHIN PATEL, BURTON COX, and SRIHARAN SIVALINGAM, Defendants.
BARBARA B. CRABB District Judge.
OPINION and ORDER Pro se plaintiff and prisoner Mustafa-El
Ajala is proceeding on claims that health care staff at the
Wisconsin Secure Program Facility and the University of
Wisconsin Hospital and Clinics failed to provide plaintiff
adequate treatment for his hypercalcemia and
hyperparathyroidism, in violation of both the Eighth
Amendment and state law. Plaintiff has filed two motions that
are ready for review: (1) a motion that I construe as a
motion to strike portions of defendants' answer under
Fed.R.Civ.P. 12(f), dkt. #43; and (2) a motion for assistance
in recruiting counsel, dkt. #49. For the reasons explained
below, I will deny the first motion and grant the second.
Motion to Strike Defendants' Answer
first motion is called “motion for an order directing
defendants to answer the pleadings fairly or have their
responses deemed admissions.” Of course, that type of
motion is not identified in the Federal Rules of Civil
Procedure, but plaintiff's argument essentially is that
many of defendants' responses to his allegations are
insufficient on their face, so I am construing the motion as
one to strike the answer under Rule 12(f).
raises two types of objections to defendants' answer.
First, he says that defendants erred in refusing to respond
to some of his allegations on the ground that the allegations
were legal conclusions. Second, he says that defendants
refused to admit many of his allegations on the ground that
they did not have sufficient information to form a belief
about those allegations, even though he believes that
defendants know the allegations are true.
first argument is a nonstarter because defendants anticipated
plaintiff's objection. In any instance in which
defendants objected to an allegation as a legal conclusion,
they followed it with the following sentence: “To the
extent the paragraph makes factual allegations regarding
Plaintiff's medical care, Defendants lack knowledge or
information sufficient to form a belief as to the truth of
the allegations, and therefore DENY.” E.g.,
Ans., dkt. #41, ¶ 18. Thus, regardless whether
defendants were correct in how they characterized a
particular allegation, plaintiff received a responsive
plaintiff's second argument, under Rule 8(b)(5), a
defendant is permitted to answer an allegation by stating
that he lacks sufficient knowledge about the truth of the
information. Plaintiff ignores this provision and instead
cites Rule 8(b)(2), which states that “[a] denial must
fairly respond to the substance of the allegation.” He
also cites American Photocopy Equipment Co. v. Rovico,
Inc., 359 F.2d 745, 747 (7th Cir. 1966), which in turn
quoted Harvey Aluminum (Incorporated) v. NLRB, 335
F.2d 749, 758 (9th Cir. 1964), for the proposition that
“an answer asserting want of knowledge sufficient to
form a belief as to the truth of facts alleged in a complaint
does not serve as a denial if the assertion of ignorance is
obviously sham.” Rule 8(b)(2) does not describe the
circumstances under which a party may answer an allegation as
permitted under Rule 8(b)(5), so it is not necessarily
instructive. The precedential value of American
Photocopy is in question because the Court of Appeals
for the Seventh Circuit has never repeated the same
proposition since and because Harvey Aluminum has
been overruled. In re Mortgages Ltd., 771 F.3d 623,
631-32 (9th Cir. 2014).
I assume that Rule 8 requires defendants to admit allegations
under some circumstances, plaintiff has failed to show that
defendants violated the rule. He does not develop an argument
in his brief showing that defendants had knowledge about any
particular allegation. Instead, he cites generally to large
sections of his complaint and makes a conclusory assertion
that defendants should have admitted those allegations
because the relevant information is in his medical records,
which plaintiff authorized defendants to review before he
filed this lawsuit. By failing to develop an argument with
respect to particular allegations, plaintiff forfeited the
argument. Pruitt v. City of Chicago, Illinois, 472
F.3d 925, 930 (7th Cir. 2006).
event, even under American Photocopy, there is no
requirement on defendants to review a voluminous set of
documents about the plaintiff in the short amount of time
allotted to answer the complaint in order to determine the
extent to which (1) the documents support the plaintiff's
allegations; and (2) the defendants agree with the
information in those documents. Rather, in American
Photocopy, 359 F.2d at 747, the party had refused to
admit allegations about the content of its own licenses, a
subject about which the party had personal knowledge.
gist of plaintiff's motion is that he is frustrated that
the defendants have not admitted all the allegations he
believes they should have. That is understandable, but that
does not mean he can file what is in essence a premature
motion for summary judgment to establish certain facts as a
matter of law. A defendant cannot challenge the sufficiency
of the complaint on the ground that an allegation is not
actually true, so a similar rule should apply to the answer.
After all, the purpose of an answer is simply to put the
plaintiff on notice of possible factual disputes and
defenses. Once that purpose is satisfied, the case should
proceed to the discovery phase. As I noted in Prude v.
Milwaukee County, 2014 WL 1276516, at *1 (W.D. Wis.
2014), when rejecting an argument similar to plaintiff's,
“[i]f plaintiff believe[s] that some of [his]
allegations cannot be denied plausibly, [he is] free to serve
defendants with requests for admissions under Fed.R.Civ.P.
36.” It makes little sense to delay the progression of
a case by devoting resources to questions that can be
resolved easily later in the case. That is likely why motions
like plaintiff's are rarely filed. Parties realize that
it is more efficient to proceed with discovery than to
litigate issues that will do little to bring the case to a
resolution. Regardless, plaintiff has not shown that he is
entitled to relief, so I am denying his motion to strike
Motion for Assistance in Recruiting Counsel
se litigant does not have a right to counsel in a civil case,
Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014),
but a district court has discretion to assist pro se
litigants in finding a lawyer to represent them. 28 U.S.C.
§ 1915(e)(1). A party who wants assistance from the
court in recruiting counsel must meet several requirements.
Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir.
2010). First, he must show that he is unable to afford his
own lawyer. Second, he must show that he made reasonable
efforts on his own to find a lawyer to represent him.
Jackson v. County of McLean, 953 F.2d 1070 (7th Cir.
1992). Finally, he must show that the legal and factual
difficulty of the case exceeds his ability to prosecute it.
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.
persuaded that plaintiff has met each of these requirements.
First, he is proceeding in forma pauperis, which
means that he is indigent. Second, he has submitted letters
from several lawyers who declined to represent him. Dkt.
#51-1. Third, in light of the complexity of the case, I