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Larry v. Morgan

United States District Court, E.D. Wisconsin

June 26, 2017

ORLANDO LARRY, Plaintiff,
v.
DONALD MORGAN, et al., Defendants.

         ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME (DKT. NO. 18); GRANTING MOTION TO SUBSTITE MATTHEW FRIEND FOR JOHN DOE #3 AND RUSSELL GOLDSMITH FOR JOHN DOE #4 (DKT. NO. 23); DENYING MOTION FOR ORDER REGARDING SUBPOENA (DKT. NO. 24); DENYING PLAINTIFF'S MOTION TO COMPEL (DKT. NO. 3); GRANTING DEFENDANTS' MOTION TO STAY DISPOSITIVE MOTION DEADLINE (DKT. NO. 40); AND DENYING AS MOOT DEFENDANTS' MOTION FOR EXTENSION OF TIME OF DISPOSITIVE MOTIONS DEADLINE (DKT. NO. 41)

          PAMELA PEPPER United States District Judge

         I. Plaintiff's Motion to Extend Time to Identify Doe Defendants

         On January 27, 2017, the court entered a scheduling order that, among other things, required the plaintiff to identify the proper names of three unidentified John Doe defendants by March 3, 2017. Dkt. No. 17. The court warned the plaintiff that if he did not identify the Doe defendants by that date, the court might dismiss the Doe defendants. Id. On March 27, 2017 (more than three weeks after the deadline)[1], the court received a motion from the plaintiff, asking the court to extend the March 3, 2017 deadline. Dkt. No. 18. The plaintiff explained that he had not received responses to his discovery requests, and that he was attempting to resolve the issue with the defendants' counsel. Id. The plaintiff since has identified the Doe defendants (see III below), and the court will grant the plaintiff's motion to extend the deadline for him to identify the Doe defendants nunc pro tunc to the date on which he identified them.

         II. Defendant Morgan's Motion for Summary Judgment on Exhaustion Grounds

         On March 31, 2017, defendant Morgan filed a motion for summary judgment on the ground that the plaintiff had failed to exhaust his administrative remedies before filing this case. Dkt. No. 19. The brief in support of the motion asks the court to dismiss the case because, while the plaintiff may have filed two inmate complaints about the events of which he complains, he never appealed the resolution of those complaints. Dkt. No. 20 at 3. This motion is relevant to the court's decisions on some of the pending motions.

         III. Plaintiff's Motion for Leave to File An Amended Complaint

         On April 3, 2017, the plaintiff filed a motion to for leave to file a second amended complaint. Dkt. No. 23. The only changes the plaintiff sought to make to the amended complaint he filed back in November 2016 (Dkt. No. 10) are to identify John Doe #3 as Matthew Friend and to identify John Doe #4 as Russell Goldsmith. The court construes the motion for leave to amend as a motion to substitute the proper names for the John Doe #3 and John Doe #4 placeholders. The amended complaint the plaintiff filed on November 3, 2016 (Dkt. No. 10) will remain the operative complaint in this lawsuit, with Matthew Friend and Russell Goldsmith being substituted for John Doe #3 and John Doe #4, respectively.

         In its November 23, 2016 screening order, the court also allowed the plaintiff to proceed on a claim against John Doe #7. The plaintiff has not identified the proper name of John Doe #7, and the deadline to do so has passed. The court will dismiss John Doe #7 as a defendant.

         IV. The Plaintiff's Motion regarding a Subpoena

         Also on April 3, 2017, the plaintiff filed a document entitled “Subpoena Duces Tecum.” Dkt. No. 24. In reality, the document is a motion asking the court to order Edward Wall to produce various documents. The motion identifies Edward Wall as the Secretary of the Department of Corrections. Id. at 1. Edward Wall is not a defendant in this case, and he has not been the Secretary of the Department of Corrections since April 2016.

         The plaintiff explains that, in response to his discovery requests, defendant Donald Morgan (at that time, the only named defendant) had stated that Morgan either was unaware of or unable to locate the materials the plaintiff requested. Dkt. No. 24 at 2. The plaintiff also asserts, without explaining why, that the requested discovery is relevant to the claims and defenses he has raised. Id. The motion asks the court to allow the plaintiff to serve a subpoena on Edward Wall, demanding that Wall produce the documents he asked for. Id. at 2-3.

         A party may seek to compel a non-party to provide requested documents by serving that person with a subpoena. See Fed. R. Civ. Pro. 45. A person wishing to issue a subpoena must ask the clerk of court to provide him with a subpoena form; the clerk of court will sign a blank subpoena form and deliver it to the requesting party. Fed. R. Civ. Pro. 45(a)(3). The requesting party must then complete the form, and make arrangements (and pay) for someone to serve the subpoena on the individual from whom he seeks to obtain the documents.

         The party who seeks the subpoena is responsible for paying the associated costs-even if the court has found that that the party is indigent. See Armstead v. MacMillian, 58 Fed.Appx. 210, 213 (7th Cir. 2003) (unpublished) (“District courts do not have statutory authority to waive witness fees for indigent civil litigants . . . .”); Nail v. Gutierrez, Case No. 06-cv-292, 2007 WL 425535 at *1 (N.D. Ind. Nov. 30, 2007) (unpublished) (“. . . 28 U.S.C. §1915 does not authorize the expenditure of public funds for deposition costs; indeed, that statute does not relieve a pro se prisoner proceeding in forma pauperis from paying ...


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