United States District Court, W.D. Wisconsin
ALLEN P. GALOWSKI, Plaintiff,
MICHAEL SHAEFER, et al., Defendants.
STEPHEN L. CROCKER Magistrate Judge
Allen P. Galowski is proceeding pro se on Eighth Amendment
deliberate indifference claims against defendants, who are
staff at the Marathon County Jail. Galowski claims that
defendants failed to properly treat his mental health
condition and his physical injuries while jailed there from
December 2013 to March 2014. Dkt. 11. Before the court are
several motions concerning Galowski's deposition and
medical examination. Dkts. 56-58. For the reasons stated
below, I am extending certain deadlines and ordering Galowski
to attend his deposition and to submit to a physical
August 23, 2017, defendants sent Galowski notice that they
planned to depose him on September 6 and conduct an
independent medical examination of him on September 7.
See dkt. 60-1 and dkt. 60-2. Galowski did not appear
at the deposition or examination. Instead, he filed
“objections, ” which the court construes as
motions for protective orders. Galowski signed these
documents on September 1 but the court did not receive them
until September 7. See dkt. 56 and dkt. 57. In
response, defendants have moved to compel Galowski's
deposition and medical examination, to extend deadlines to
allow for the delayed deposition and examination, and for
sanctions. Dkt. 58.
with the deposition, the court will deny Galowski's
motion for a protective order and is granting defendants'
motion to compel. A party must attend a properly noticed
deposition unless he shows “good cause” that he
must be protected from “annoyance, embarrassment,
oppression, or undue burden or expense.” Fed.R.Civ.P.
26(c)(1). Galowski has not shown good cause. He argues that
(1) he doesn't have an attorney; and (2) he
“identified all the issues and answers in the
complaint.” Dkt. 57. Depositions of pro se parties
(that is, parties without counsel) are routine, so the lack
of an attorney is not good cause to avoid a deposition.
See, e.g., De Bauche v. Harley-Davidson Motor
Co. Operations, Inc., 88 F. App'x 122, 124-25
(7th Cir. 2004) (affirming a district court's
order dismissing a case as a sanction for a pro se
plaintiff's refusal to participate in a deposition). The
fact that Galowski “identified all the issues” in
his complaint is not a valid reason to avoid the deposition,
either. Parties have a right to conduct discovery, including
depositions, regarding “any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). Plaintiffs are routinely deposed by defendants. So,
defendants may depose Galowski in this case. Defendants
propose September 18, 2017 as the date of the deposition.
That's fine with the court; if Galowski has a genuine
good reason why he cannot attend a deposition on this date,
he should let defendants know right away. But if Galowski
tries to avoid being deposed by offering unpersuasive
excuses, then he will face consequences from the court.
to the independent medical examination, the court will deny
Galowski's motion for a protective order and grant
defendants' motion for an examination. Unlike
depositions, the burden is on defendants to show (1) that
Galowski's mental or physical condition is actually in
controversy; and (2) that there is good cause for an
examination. Fed.R.Civ.P. 35(a); J.H. v. Sch. Town of
Munster, 38 F.Supp.3d 986, 988 (N.D. Ind. 2014) (citing
Schlagenhauf v. Holder, 379 U.S. 104, 118-19
(1964)). Here, Galowski's claims arise directly out of
defendants' alleged failure to adequately treat his
physical injuries and mental health needs. See dkt.
11, at 2-4. Galowski seeks damages for his “injuries,
medical costs, [and] future medical costs.” Dkt. 1,
¶ 255. He intends to prove that defendants' failures
caused him permanent physical injury. See dkt. 53,
at 3. So Galowski clearly has placed his physical and mental
conditions squarely into controversy, which means there is
good cause for an examination of Galowski's mental and
physical condition. Galowski argues that an examination is
unnecessary because (1) he “has his own doctors”
and (2) “the court and defendants attorneys have all
medical reports” he has released. Dkt. 56, at 1.
That's not the way civil lawsuits work. This is an
adversarial process. Even if defendants have Galowoski's
medical records, they are entitled to an examination of
Galowski by an independent, qualified examiner as well.
See Reyes v. Dart, 801 F.3d 879, 881 (7th
Cir. 2015). I am granting defendants' motion for an
requires that my order “specify the time, place,
manner, conditions, and scope of the examination, as well as
the person or persons who will perform it.” Defendants
have proposed a date, time and place for the examination, as
well as a doctor who will perform it: Charles Burton, MD. As
for the manner, conditions, and scope of the examination,
defendants only indicate that they want the examination to
“determine the cause, extent and permanency associated
with [Galowski's] alleged physical injuries and
damages.” Dkt. 59, at 9. In the absence of further
guidance from defendants, I will order Galowski to submit to
a physical examination limited to determining the cause,
extent, and permanency of the physical injuries that he
alleges were caused or exacerbated by defendants' actions
or failure to act. The examination must be conducted
according to Dr. Burton's professional judgment. Again,
if defendants' proposed IME date presents a genuine and
severe inconvenience for Galowski, he must let the defendants
know promptly so that an acceptable IME date can be set
sooner rather than later..
also ask the court to extend the dispositive motions deadline
to October 31 so that they may conduct Galowski's
deposition before moving for summary judgment and to allow
them until November 17 to supplement their expert disclosures
with Dr. Burton's written report. The court will grant
I am denying defendants' motion for sanctions. Defendants
complain that Galowski didn't move for a protective order
until September 7, the day after the deposition was supposed
to occur, and that they wasted time and money preparing for a
deposition that never took place. Defendants are correct that
sanctions may be appropriate when a party fails, after being
served with proper notice, to appear for a deposition unless
he already filed a motion for a protective order.
See Fed. R. Civ. P. 37(d). I would be inclined to
award defendants sanctions were it not for defendants'
own failure to follow the rules.
it is questionable whether defendants served Galowski with
proper notice. Rule 30(b)(1) requires the provision of
reasonable notice of depositions. Defendants gave Galowski
nine business days' notice of his deposition by email-he
received notice in the mail only seven business days before
the deposition. Depending on the situation, nine business
days' notice may be reasonable, but that's cutting it
close. See In re Sulfuric Acid Antitrust Lit., 231
F.R.D. 320, 327-28 (N.D. Ill. 2005) (collecting cases and
determining that ten business days' notice was
unreasonable). Defendants would be on more solid ground if
they had provided Galowski with more ample notice.
defendants erroneously “noticed” an independent
medical examination when Rule 35 clearly indicates that a
court order is required. Unlike depositions, which parties
may conduct “without leave of court” in most
circumstances, Fed.R.Civ.P. 30(a), physical and mental
examinations require a court order made “only on motion
for good cause.” Fed.R.Civ.P. 35(a)(1). Defendants
attempted to bypass this rules, sending Galowski a short
notice requiring him to submit to an examination and
threatening him that he would be responsible for
“cancellation or no-show fees” if he didn't
show up. Dkt. 60-2, at 3. Defendants' procedural end-run
is all the more troublesome because it was aimed at a pro se
opponent who is not versed in the rules or their
said, Galowski is put on notice: he choose to bring this
lawsuit, so now he must allow the defendants their fair
opportunity to develop the evidence that will allow them to
defend against his claims. If Galowski does not sit for his
deposition or participate in the IME, then it is likely that
the court will impose sanctions, which could include
dismissing his lawsuit entirely.
Plaintiff's motions for protective orders, dkt. 56 ...