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Williams v. Swenson

United States District Court, E.D. Wisconsin

August 30, 2017

TRAVIS DELANEY WILLIAMS, Plaintiff,
v.
REBECCA SWENSON, KAREN BUTLER, MEGAN KEEFER, JULIE BENNETT, CORPORAL PARKER, DAVID G. BETH, GUARD ULEMAN, and KURT MIKUTIS, Defendants.

         ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S THIRD MOTION TO APPOINT COUNSEL (DKT. NO. 102), DENYING PLAINTIFF'S MOTION TO COMPEL (DKT. NO. 103), DENYING AS MOOT PLAINTIFF'S MOTION FOR EXTENSION OF TIME (DKT. NO. 138), DENYING AS MOOT PLAINTIFF'S MOTION FOR LEAVE TO FILE EXCESS PAGES (DKT. NO. 139), DENYING PLAINTIFF'S 62(B) MOTION TO STAY (DKT. NO. 140), DENYING PLAINTIFF'S MOTION TO STRIKE (DKT. NO. 146), DENYING PLAINTIFF'S MOTION TO STRIKE (DKT. NO. 147), DENYING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S PROPOSED FINDINGS OF FACT (DKT. NO. 151), DENYING PLAINTIFF'S MOTION TO COMPEL (DKT. NO. 152), DENYING DEFENDANT KAREN BUTLER'S MOTION TO STRIKE PLAINTIFF'S PROPOSED FINDINGS OF FACT (DKT. NO. 160), DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME (DKT. NO. 171), DENYING PLAINTIFF'S MOTION TO STRIKE (DKT. NO. 180), AND GRANTING PLAINTIFF'S MOTION UNDER RULE 43(A), ET AL. (DKT. NO. 206)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         The court allowed the plaintiff, a state prisoner, to proceed on claims regarding the medical care he received for osteoarthritis while he was housed at the Kenosha County Jail. Dkt. No. 12. Between May and August 2016, the court entered three orders resolving outstanding motions in this case[1] (dkt. nos. 85, 90 and 95); it also issued an amended scheduling order that provided a discovery deadline of October 10, 2016 and a summary judgment deadline of November 10, 2016. Dkt. No. 99.

         Since then, the plaintiff has filed ten motions-not including his summary judgment filings. The defendants have filed motions for summary judgment, as well as filing two motions to strike some of the plaintiff's filings. This order resolves the non-dispositive motions only; the court will rule separately on the motions for summary judgment.

         1. Plaintiff's Third Motion to Appoint Counsel (Dkt. No. 102)

         On October 3, 2016, the court received the plaintiff's third motion to appoint counsel. Dkt. No. 102. The plaintiff reiterates that he has been denied access to the Columbia Correctional Institution library; he emphasizes that he has suffered a total denial of access. Id. at 1-2. The plaintiff again asserts that he was being retaliated against at CCI, and explains to the court that he has filed suit asking for a preliminary injunction against the staff who retaliated against him, but that the district court in the Western District has not yet heard the motion for preliminary injunction. Id. The plaintiff reminds the court that he has only a sixth-grade education, and that he has needed to rely on other inmates to help him prepare legal documents. He says that despite these facts, the court already has forced him to go through two motions for summary judgment with prisoner help in the day room due to his lack of access to the law library. Id. at 3. He also indicates, in response to the court's prior question about whether he could do research without having to physically go to the law library, that he previously provided the court with evidence that the law librarian had told him he could not buy copies of court opinions. Id. at 2-3. He argues that no one in his situation could file lucid legal documents, and that the court is holding him to a higher standard than it would a high-priced lawyer. Id. at 2-3.

         The court has said this before in other orders: to decide whether to appoint counsel, 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 v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)). The court looks not just to the plaintiff's ability to try the case, but also his ability to perform other “tasks that normally attend litigation, ” such as “evidence gathering” and “preparing and responding to motions.” Id.

         The ample record before the court shows that the plaintiff has been able to use discovery to gather evidence, and has been able to present a motion for summary judgment and respond to three separate motions for summary judgment. He also filed and responded to numerous other motions. The court has no doubt that preparing these documents under the circumstances the plaintiff describes is difficult and time-consuming for the plaintiff. But with his sixth-grade education and the other difficulties he suffers, the plaintiff has filed more motions than many inmates who have more education-and the court believes (despite the plaintiff's hints to the contrary) that it has understood his motions.

         The court continues to believe that at this point, the plaintiff is able to represent himself, albeit with some difficulty. The court will deny the plaintiff's third motion to appoint counsel without prejudice. If any of the plaintiff's claims survive summary judgment and head to trial, the plaintiff may renew his motions at that time.

         2. Plaintiff's Motion to Compel (Dkt. No. 103)

         On October 17, 2016, the court received from the plaintiff a motion to compel defendant Butler to respond to two sets of requests for production of documents. Dkt. No. 103. The motion was signed on October 5, 2017, twelve days before the court received it and two days after the court received his third motion for appointment of counsel. Id. In the motion, the plaintiff indicates that he twice sent the requests to the attorney, and that both times, he included language asking to confer. Id. In response, counsel for Butler indicates that Butler has responded to the requests. Dkt. No. 104. Counsel further notes that the plaintiff mailed his requests on September 4, 2016, and October 1, 2016, but then filed his motion to compel before the thirty-day period for Butler to respond had expired. Id.

         The court previously has advised the plaintiff about how to meet and confer before bringing a motion to compel, but the plaintiff did not follow those instructions here. Perhaps more relevant, the plaintiff did not give Butler the opportunity to respond to his requests before asking for the court to intervene. The plaintiff's first request for production was signed on September 4, 2016; it appears the defendant may have received it on September 12, 2016. That means she had until October 12, 2016 to respond. The plaintiff, however, dated his second request October 1, 2016-almost two weeks before the deadline for Butler to respond to the first request. The second request was not timely. The court had ordered the parties to “serve all requests for discovery by a date sufficiently early so that all discovery [was] completed no later than October 10, 2016.” Dkt. No. 99 at 1. Preparing a discovery demand on October 1, 2016 (which it appears the defendant received on October 7, 2016) did not give the defendant sufficient time to respond before the October 10, 2016 deadline.

         Because the plaintiff did not comply with the court's instructions about meeting and conferring, because he did not give the defendant sufficient time to respond, and because the defendant has responded to the plaintiff's discovery demands, the court will deny the plaintiff's motion to compel.

         3. Plaintiff's Motion for Extension of Time (Dkt. No. 138)

         On November 10, 2016, the court received from the plaintiff a motion for extension of time to respond to the defendants' motions for summary judgment. Dkt. No. 138. The plaintiff asked the court to extend the deadline for him to respond to the nurse defendants' motion for summary judgment to January 3, 2017. Dkt. No. 138. He asked the court to rule on his motion for summary judgment before ruling on the defendants' motions, and he mentioned that, at that time, he had to prepare for a hearing in a criminal case on November 1, 2016. Id. Despite these arguments, the court received the plaintiff's response to the nurse defendants' motion on November 22, 2016. Dkt. Nos. 154-58. The court considers that response timely, and will deny the plaintiff's motion for extension of time as moot.

         4. Plaintiff's Motion for Leave to File Excess Pages (Dkt. No.139)

         In his motion for leave to file excess pages, which the court received on November 10, 2016, the plaintiff anticipated that he would need 120 pages to respond, because he needed to refer to sections of his motion for summary judgment and needed to point to numerous exhibits already in the record. Dkt. No. 139. As the court indicated above, it received his responsive brief on November 22, 2016. Dkt. No. 154. That brief was only twenty-eight pages long, fewer than the thirty pages allowed by Civil Local Rule 7(f). The court will deny the motion for leave to file excess pages as moot.

         5. Plaintiff's Motion to Stay Under Rule 62(b) (Dkt. No. 140)

         On November 10, 2016, the court received a document that the plaintiff titled “Motion Under Federal Rule Civil Procedure 62(B).” Dkt. No. 140. In the first paragraph of the motion, the plaintiff asked the court to “stay the recently file[d] motion for summary judgment filed by [the nurse defendants].”[2]Id. The plaintiff argues that, because he filed his motion for summary judgment ...


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