United States District Court, E.D. Wisconsin
AND ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO
APPOINT COUNSEL (DKT. NO. 119), DENYING PLAINTIFF'S
MOTION FOR RECUSAL (DKT. NO. 120), DENYING PLAINTIFF'S
MOTION FOR RECUSAL (DKT. NO. 121), DENYING PLAINTIFF'S
MOTION FOR RELIEF (DKT. NO. 124), GRANTING DEFENDANTS'
MOTION FOR EXTENSION OF TIME (DKT. NO. 128), DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
135), DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME
(DKT. NO. 138), DENYING PLAINTIFF'S MOTION FOR EXTENSION
OF TIME (DKT. NO. 156), DENYING PLAINTIFF'S MOTION TO
COMPEL OR FOR ENTRY OF DEFAULT JUDGMENT (DKT. NO. 157),
DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT
COUNSEL (DKT. NO. 159), DENYING PLAINTIFF'S MOTION TO
COMPEL (DKT. NO. 167), DENYING WITHOUT PREJUDICE
PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 175),
GRANTING PLAINTIFF'S MOTION TO EXPEDITE (DKT. NO. 178),
GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE
REPLY (DKT. NO. 193), AND DIRECTING PLAINTIFF TO FILE HIS
REPLY MATERIALS ON OR BEFORE OCTOBER 6, 2017
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
court entered orders on February 2, 2017 (dkt. no. 117) and
February 7, 2017 (dkt. no. 118). In the first order, the
court suspended summary judgment deadlines until the court
could rule on numerous outstanding motions. Dkt. No. 117. In
the second order, the court decided the numerous pending
motions and apologized for the delay. Dkt. No. 118. Despite
the court's attempt to get this case back on track with
the sixty-page order entered on February 7, 2017, the parties
have continued to file new non-dispositive motions, which are
now before the court. The parties continue to brief their
respective motions for summary judgment, which the court will
address in a separate order once briefing is complete.
Plaintiff's Fourth Motion to Appoint Counsel (Dkt. No.
February 9, 2017-two days after the court issued its February
7, 2017, sixty-page ruling-the court received from the
plaintiff three motions, including a fourth motion to appoint
counsel. Dkt. No. 119. The February 7, 2017 order had denied
as moot the plaintiff's second motion to appoint counsel,
and had denied his third motion to appoint counsel.
See Dkt. No. 118 at 59.
court has explained before, in a civil case, the court has
discretion to decide whether to recruit a lawyer for someone
who cannot afford one. Navejar v. Iyola, 718 F.3d
692, 696 (7th Cir. 2013); 28 U.S.C § 1915(e)(1); Ray
v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67
(7th Cir. 2013). First, however, the person has to make a
reasonable effort to hire private counsel on their own.
Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
After the plaintiff makes that reasonable attempt to hire
counsel, the court then 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, 718 F.3d at
696 (citing Pruitt, 503 F.3d at 655). To decide
that, the court looks, not only at the plaintiff's
ability to try his case, but also at his ability to perform
other “tasks that normally attend litigation, ”
such as “evidence gathering” and “preparing
and responding to motions.” Id.
February 9, 2017, motion to appoint counsel, the plaintiff
indicates that he needs counsel because he cannot call the
judge's chambers to make “conspired rulings against
the defendants”-a reference to his belief that the
court's February 2, 2017 order was the result of opposing
counsel calling and “conspiring” with the judge.
Dkt. No. 119 at 1. He also indicates that he needs a licensed
attorney to “compete with the court and defendants
attorney under hand dirty tricks to even stand a chance in
this prejudiced court.” Id. at 2. The court
has said before-it has not had communications with opposing
counsel and has not “conspired” with opposing
counsel. The court's decisions are its own. This motion
does not state sufficient grounds for the court to recruit
pro bono counsel, and the court will deny the
Plaintiff's Motions for Recusal (Dkt. Nos. 120, 121)
February 9, 2017, the court received from the plaintiff a
motion for recusal, dkt. no. 120, as well as a second motion
for recusal, dkt. no. 121. In these motions, the plaintiff
asserts that the court made a biased ruling when it cut off
summary judgment briefing before the deadline for the
defendants to respond to his amended motion for summary
judgment. Dkt. No. 120. The plaintiff suggests that there is
a conspiracy between the judge and the defendants, because,
he says, the judge suspended the briefing after receiving a
phone call from the defendants. Id. In the second
motion, the plaintiff reiterates that the court's
February 2, 2017, decision was biased. Dkt. No. 121. He also
indicates that he filed a new lawsuit against individuals at
Columbia Correctional Institution, that he had received no
relief from the law library, and that he was waiting for a
decision on his many outstanding motions. Id. In
deciding both motions, the court will consider the two
statutes that relate to a judge disqualifying herself.
455(a) of Title 28 of the United States Code requires a
federal judge to “disqualify [herself] in any
proceeding in which [her] impartiality might reasonably be
questioned.” However, “judicial rulings alone
almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994). In order to succeed on a recusal
claim under §455(a), a plaintiff must show that the
judge relied upon knowledge acquired outside the case or
displayed deep-seated and unequivocal antagonism that would
render fair judgment impossible. See id. at 556.
a motion to recuse under 28 U.S.C. §455(a), which simply
requires the moving party to demonstrate a reasonable
appearance of bias, a motion to disqualify under 28 U.S.C.
§144 requires the moving party to show actual bias.
Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th
Cir. 2004). A party must present “a timely and
sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice against him or in
favor of any adverse party.” 28 U.S.C. §144. Once
again, judicial rulings alone will almost never constitute a
valid basis for disqualification under §144.
See Liteky, 510 U.S. at 555. Also,
“[a] trial judge has as much obligation not to recuse
[herself] when there is not occasion for [her] to do so
[under § 144] as there is for [her] to do so when the
converse prevails.” Hoffman, 368 F.3d at 717
(quoting United States v. Ming, 466 F.2d 1000, 1004
(7th Cir. 1972)).
plaintiff asserts that the judge received a telephone call
from the defendants, and that she issued her ruling after
that phone call. The plaintiff presents no proof of such a
phone call, and he cannot, because no such call took place.
The judge has not spoken with counsel for the defendants. The
plaintiff's bare allegation that such a phone call took
place is not sufficient to show either a reasonable
appearance of bias or actual bias. The court will deny the
plaintiff's motions for recusal.
Motion for Relief from Judgment (Dkt. No. 124)
February 16, 2017, the court received a motion from the
plaintiff asking for relief from judgment. Dkt. No. 124. The
court has not entered judgment in this case, so there is no
judgment for the court to relieve the plaintiff from. Despite
its caption, this motion actually is a request for the court
to reconsider its February 2, 2017 order suspending summary
judgment briefing deadlines until the court could rule on the
motions that were outstanding at that time. Dkt. No. 117. The
court will deny this motion.
court suspended summary judgment briefing-of its own
accord-for one reason, and one reason only: the parties had
filed numerous non-dispositive motions, and the court had not
promptly ruled on those motions (a failure for which it has
apologized to the parties). The court needed to resolve those
motions before the summary judgment briefing concluded, to
make sure that none of them impacted the summary judgment
proceedings. The court acted within its discretion when it
modified the summary judgment briefing schedule, and it had
good cause to do so (the need to resolve the numerous pending
motions). See Fed.R.Civ.P. 16(b)(4). There were no
“manifest errors of law or fact” in the
court's decision; nor is there “newly discovered
evidence” that requires the court to change its
decision. See Fed.R.Civ.P. 54(b); Rothwell
Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251
(7th Cir.1987). The court will deny the plaintiff's
motion to reconsider its February 2, 2017 ruling.
Defendants' Motion for an Extension of Time to Comply
with Court Order (Dkt. No. 128)
February 24, 2017, the court received the next motion-this
one, from the defendants. Dkt. No. 128. The defendants asked
for an extension of time to comply with the court's
February 7, 2017 order (dkt. no. 118), which required them to
provide address information for Dr. Ortiz. They indicated
that they needed the additional time because Dr. Ortiz would
be out of the country until February 28, 2017 (four days
after the deadline the court had set for the defendants to
either provide his address or file a waiver of service). Dkt.
No. 128. Thirteen days after the court received the motion
(and thus, thirteen days after the deadline the defendants
sought to extend), the court received a waiver of service for
Dr. Ortiz. Dkt. No. 131. On the same day, the defendants
filed an answer to the complaint on behalf of themselves and
Dr. Ortiz. Dkt. No. 132. The court will grant the
defendants' motion for an extension of time to file the
waiver, nunc pro tunc to March 9, 2017, and will
deem the Ortiz waiver of service, and the defendants'
March 9, 2017 answer, timely.
Plaintiff's Fifth Motion to Appoint Counsel (Dkt. No.
2, 2017, the court received from the plaintiff another motion
to appoint counsel-his fifth in this case. Dkt. No. 135. In
his brief in support of this fifth motion, the plaintiff
again suggests that the court wrongfully suspended summary
judgment briefing based on a call from the defendants. Dkt.
No. 136 at 1. The plaintiff also argues that his case is
factually complex, will involve conflicting testimony, and
has merit, and that he needs witnesses to elaborate on the
defendants' actions between May 2014 and September 2014.
Id. at 1-2. He suggests that the court did not
consider his affidavit in Case No. 14-cv-1078, and that the
court likely will ignore the affidavits he submits in this
case. Id. at 2. Specifically, he says he needs an
attorney who can review video footage and “who can call
the court & get motions squashed, deferred &
postponed like the defendants ...