United States District Court, E.D. Wisconsin
DAMIEN M. GRIFFIN, Plaintiff,
PHIL PRZYBYLINSKI, Defendant.
AND ORDER DENYING WITHOUT PREJUDICE THE DEFENDANT'S
MOTION TO COMPEL (DKT. NO. 28), DENYING WITHOUT PREJUDICE THE
PLAINTIFF'S MOTION TO COMPEL (DKT. NO. 35) GRANTING THE
PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 33), AND
DENYING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT.
PEPPER United States District Judge
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the defendant violated his Eighth Amendment
rights at the Green Bay Correctional Institution
(“GBCI”). Dkt. No. 1. There are several pending
motions: the defendant's second motion to compel the
plaintiff to provide a medical release, dkt. no. 28; the
plaintiff's motion to appoint counsel, dkt. no. 33; the
plaintiff's motion to compel, dkt. no. 35; and the
defendant's motion for summary judgment, dkt. no. 38. The
court will deny the defendant's motion for summary
judgment, because it finds that there is a genuine issue of
material fact to submit to a jury, and will rule on the other
The Parties' Cross-Motions to Compel
defendant filed a second motion, asking the court to require
the plaintiff to sign a release for his medical records. Dkt.
No. 28. The motion indicated that, even though the court had
ordered the plaintiff to provide a signed medical release by
a date certain, the plaintiff again had opted to draft his
own medical release, rather than using the standard release
form. Id. at 2-3.
plaintiff then filed a motion to compel the defendant to
produce to the court, for inspection, certain
records and video footage. Dkt. No. 35. The plaintiff
indicated that the defendant had not provided full answers to
his discovery demands. Id. at 1-3. The plaintiff
also indicated that he'd asked for video footage of the
incident that took place during mail call. Id. at 4.
The plaintiff asserted that he needed all of the information
for summary judgment and for trial, and he asked the court to
require the defendant to produce the documents to the court,
so that the court could verify that the defendant had
received everything he needed. Id. at 4-5.
parties fully briefed the motion for summary judgment without
reference to their pending cross-motions to compel.
See Dkt. Nos. 39, 49, 58. This means either that
they managed to brief the motion without the materials they
indicated they did not have, or that they were able to work
out their disagreements. The court is going to deny both
motions without prejudice. If, in light of the court's
denial of the defendant's motion for summary judgment,
the defendant still needs medical information he has not yet
been able to obtain, the court will allow him to renew his
motion for the limited purpose of obtaining a full release.
If, in light of the court's decision to appoint counsel
to represent the plaintiff, his attorney believes that
further discovery is necessary, the court will allow counsel
to request time for that additional discovery.
The Defendant's Motion to Appoint Counsel
the defendant filed his motion for summary judgment, the
plaintiff had filed a motion asking the court to appoint
counsel to represent him. Dkt. No. 33. On May 23, 2017, the
court received a letter from the plaintiff, asking the court
to allow him to withdraw his motion to appoint counsel
because the motion was “now irrelevant to this
case.” Dkt. No. 59.
court assumes that the reason the plaintiff believed that his
motion to appoint counsel was irrelevant to his case was
because he thought he needed an attorney only for the
purposes of summary judgment. The court now has decided the
summary judgment motion; it is denying the motion, which
means that either the case will proceed to trial or the
parties will negotiate a settlement. It is the court's
practice to recruit counsel to represent inmates once their
cases have survived summary judgment. The court will follow
that practice in this case. The court will not withdraw the
plaintiff's motion for appointment of counsel; instead,
it will grant it, and start recruiting counsel to represent
the court has found an attorney to represent the plaintiff,
the court will send the plaintiff paperwork to complete,
agreeing to abide by the terms of the court's pro
se counsel reimbursement policy. After the plaintiff has
signed and returned the paperwork, the court will schedule a
hearing to talk with counsel for both sides about the next
steps in the case. The plaintiff does not need to file
anything, or take any action, until he receives the paperwork
from the court.
The Defendant's Motion for Summary Judgment
the relevant period, the plaintiff was an inmate at GBCI.
Dkt. No. 40, ¶1. The defendant was a correctional
officer at GBCI. Id. at ¶6. The plaintiff and
the defendant had a brief conversation on January 4, 2014;