Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. Ortiz

United States District Court, E.D. Wisconsin

August 30, 2017

TRAVIS DELANEY WILLIAMS, Plaintiff,
v.
DR. ORTIZ, LT. BRADLEY FRIEND, AUSTIN ISFERDING, ROBERT HERNANDEZ, WILLIAM COE, and JAMES OLSTINSKE, Defendants.

         DECISION 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

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         The 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.

         A. Plaintiff's Fourth Motion to Appoint Counsel (Dkt. No. 119)

         On 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.

         As the 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.

         In his 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 motion.

         B. Plaintiff's Motions for Recusal (Dkt. Nos. 120, 121)

         Also on 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.

         Section 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.

         Unlike 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)).

         The 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.

         C. Motion for Relief from Judgment (Dkt. No. 124)

         On 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.

         The 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.

         D. Defendants' Motion for an Extension of Time to Comply with Court Order (Dkt. No. 128)

         On 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.

         E. Plaintiff's Fifth Motion to Appoint Counsel (Dkt. No. 135)

         On May 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.