United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
BARBARA A. TEELING, BRAD FRIEND, MELISSA MORAN, ANTHONY LACOMBE, GREGORY BUCHOLTZ, ROBERT A. MASTRONARDI, STEVEN M. CLOPE, and NICOLE L. PETERSEN, Defendants.
Stadtmueller, U.S. District Judge
Court will address certain outstanding motions. On September
28, 2017, Plaintiff filed a joint motion for appointment of
counsel and to stay this matter. (Docket #40). Under 28
U.S.C. § 1915(e)(1), the “court may request an
attorney to represent any person unable to afford
counsel.” The Court should seek counsel to represent a
plaintiff if the person: (1) has made reasonable attempts to
secure counsel; and (2) “‘the difficulty of the
case- factually and legally-exceeds the particular
plaintiff's capacity as a layperson to coherently present
it.'” Navejar v. Iyiola, 718 F.3d 692, 696
(7th Cir. 2013) (quoting Pruitt v. Mote, 503 F.3d
647, 655 (7th Cir. 2007) (en banc)).
Court has already informed Plaintiff, it will not consider
any motions for appointment of counsel until the discovery
period closes on January 22, 2018. (Docket #19 at 6). The
motion would be denied on its merits, in any event. As to the
first Pruitt element, Plaintiff states that he
cannot afford postage to contact lawyers, and receives only
two free envelopes per month, which he uses in furthering his
various civil lawsuits.
#40 at 1). This explanation is unsatisfactory.
Plaintiff's limited ability to contact lawyers, though
regrettable, is common to nearly all inmates. Further, he has
the freedom to use his state-issued envelopes as he desires,
and chose not to use them to establish the proper basis for
appointment of counsel.
the second Pruitt element, Plaintiff has not
demonstrated that this case's complexity exceeds his
capacity to present it. Indeed, while the Court has not
agreed with every position Plaintiff has taken in his
filings, the filings have generally been cogent and
well-organized, citing both law and evidence where
appropriate. See, e.g., (Docket #34). As
Pruitt makes clear, the question is not whether
Plaintiff would fare better with the assistance of counsel,
it is whether he is capable of litigating this case on his
own. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th
Cir. 2014). Plaintiff appears to have a clear understanding
of his theory of the case and has advanced it in a coherent
manner, including seeking extensive and detailed discovery
materials. See (Docket #21 and #22). Plaintiff's
motion for appointment of counsel will, therefore, be
same motion, Plaintiff seeks a stay of these proceedings.
(Docket #40 at 3). Plaintiff seems to believe that denial of
his motion for appointment of counsel was a foregone
conclusion, and indicates that he intends to appeal the
denial immediately and wishes to stay this case in the
interim. Id. Denial of a motion for appointment of
counsel is a non-final order. An attempted appeal of such an
order is procedurally improper and thus fails to divest the
Court of jurisdiction and authority to dispose of the case.
See JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper
Co., Ltd., 707 F.3d 853, 860 n.7 (7th Cir. 2013);
Wis. Mut. Ins. Co. v. United States, 441 F.3d 502,
504-05 (7th Cir. 2006); Kaszuk v. Bakery &
Confectionery Union & Industry Int'l Pension
Fund, 791 F.2d 548, 558-59 (7th Cir. 1986). The motion
to stay will be denied. The Court notes that whether or not
Plaintiff attempts to appeal the instant order, the schedule
and deadlines previously set in this matter will remain in
effect, and this action will be dismissed if he does not
comply with them.
September 8, 2017, Plaintiff filed two motions to compel
discovery responses and to sanction Defendants for failing to
respond appropriately. (Docket #21 and #22). The Court cannot
reach the substance of his motions because he has not
followed the procedures for bringing them. Namely, Plaintiff
has not complied with Civil Local Rule 37's requirement
that good faith efforts be made to resolve a dispute before
the filing of a motion to compel. The Rule provides as
motions to compel disclosure or discovery pursuant to
Fed.R.Civ.P. 26 through 37 must be accompanied by a written
certification by the movant that, after the movant in good
faith has conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action, the parties are unable to
reach an accord. The statement must recite the date and time
of the conference or conferences and the names of all parties
participating in the conference or conferences.
L. R. 37. Plaintiff's submissions fail in two ways.
First, they clearly lack the appropriate certification. Both
motions state that “plaintiff has made attempt to
resolve this issue with Defendants' counsel” to
“no avail.” (Docket #21 at 1; Docket #22 at 1).
These single sentences do not assert that the attempt at
conferring with Defendants was made in good faith, and do not
recite the date and time of any conference or the
participating parties. In Plaintiff's case, his
incarceration precludes holding an in-person conference, so
his certification should have instead contained an
explanation of the date and substance of his communications
with Defendants' counsel regarding his motions, whether
by phone or letter.
the lack of the detail about Plaintiff's communications
is more than a mere technical failing. The purpose of Civil
Local Rule 37 is for parties to confer on their discovery
disputes and present each other with all of their
arguments thereon. Thus, when the parties turn to the Court
for resolution of the dispute, the Court can rest assured
that each argument presented to it was considered by the
parties, but could not be amicably resolved. Without an
appropriately detailed certification from Plaintiff, the
Court cannot conclude that this actually occurred. Though
Plaintiff makes various assertions about his meet-and-confer
attempts in his reply, the certification contemplated by
Civil Local Rule 37 must be included within, or filed
contemporaneously with, the motion to compel itself.
Court closes by noting that Plaintiff's reply in support
of his motions to compel also mentions an immediate appeal.
Denial of a motion to compel is also a non-final order. As
discussed above, any such appeal would have no effect on the
continued progress of this case.
IT IS ORDERED that Plaintiff's motion
for appointment of counsel and to stay this case (Docket #40)
be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff's
motions to compel (Docket #21 and #22) be and the same are
Milwaukee, Wisconsin, this 16th ...