United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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
(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.
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.
Plaintiff's Third Motion to Appoint Counsel (Dkt. No.
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.
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
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.
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.
Plaintiff's Motion to Compel (Dkt. No. 103)
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.
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.
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
Plaintiff's Motion for Extension of Time (Dkt. No.
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
Plaintiff's Motion for Leave to File Excess Pages
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.
Plaintiff's Motion to Stay Under Rule 62(b) (Dkt. No.
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].”Id. The plaintiff argues
that, because he filed his motion for summary