United States District Court, E.D. Wisconsin
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)
PEPPER United States District Judge
Plaintiff's Motion to Extend Time to Identify Doe
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), 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.
Defendant Morgan's Motion for Summary Judgment 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.
Plaintiff's Motion for Leave to File An Amended
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.
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.
The Plaintiff's Motion regarding a Subpoena
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.
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.
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.
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 ...