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Griffin v. Przybylinski

United States District Court, E.D. Wisconsin

October 25, 2017

DAMIEN M. GRIFFIN, Plaintiff,
v.
PHIL PRZYBYLINSKI, Defendant.

         DECISION 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. NO. 38)

          PAMELA PEPPER United States District Judge

         The 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 motions.

         I. The Parties' Cross-Motions to Compel

         The 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.

         The 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.

         The 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.

          II. The Defendant's Motion to Appoint Counsel

         Before 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.

         The 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 plaintiff.

         Once 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.

         III. The Defendant's Motion for Summary Judgment

         A. Facts[1]

         During the relevant period, the plaintiff was an inmate at GBCI. Dkt. No. 40, ¶1. The defendant was a correctional officer at GBCI. Id. at ΒΆ6. The plaintiff and the defendant had a brief conversation on January 4, 2014; the ...


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