United States District Court, E.D. Wisconsin
DEQUARIUS D. FITZPATRICK, Plaintiff,
SGT VERHEYEN, et al., Defendants.
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE.
Dequarius Fitzpatrick filed these consolidated pro
se actions under 42 U.S.C. § 1983, alleging
violations of his civil rights. His claims arise from
incidents in which he alleges that prison officials at Green
Bay Correctional Institution (GBCI) failed to adequately
respond to his stated intention to act on suicidal thoughts.
On October 23, 2017, this court issued an order resolving
several of Fitzpatrick's discovery motions and permitting
him to file a motion for summary judgment and respond to the
defendants' motion for summary judgment within thirty
days. ECF No. 59. Since then, Fitzpatrick has filed a motion
to stay (ECF No. 61), four discovery motions (ECF Nos. 60,
62, 64, 66), a motion for an extension of time (ECF No. 63),
and a motion to appoint counsel (ECF No. 66). These motions
will all be denied.
outset, Fitzpatrick's motion to stay refers to the
various motions decided in this court's October 23, 2017
order. ECF No. 61. That order resolved Fitzpatrick's
motions, concluded that the time for discovery had ended, and
established deadlines for Fitzpatrick to file a motion for
summary judgment and respond to defendants' motion for
summary judgment. Consequently, Fitzpatrick's motion for
stay is moot and will be denied.
Fitzpatrick's discovery motions request sanctions against
Defendant John Afolabi. ECF Nos. 60, 64. The first seeks a
default judgment against Afolabi for allegedly
“committing perjury” (ECF No. 60 at 1), and the
second more generally seeks “an order sanctioning
Defendant Afolabi” for the same conduct (ECF No. 64).
Both motions arise out of Afolabi's discovery responses
related to Fitzpatrick's claim that Afolabi failed to act
after Fizpatrick told him on August 31, 2016, that he was
suicidal. In the report created in response to
Fitzpatrick's inmate complaint about the incident, the
complaint examiner noted that, after contacting Afolabi
several times over the intercom, “Fitzpatrick indicated
that he was feeling suicidal. [Afolabi] then contacted the
unit sergeant, ” who in turn contacted the PSU. ECF No.
60-1 at 1. But in his response to Fitzpatrick's first set
of interrogatories, Afolabi stated that, during the exchange,
Fitzpatrick “did not provide further details regarding
why he wanted to talk to PSU.” Id. at 3. And
in response to Fitzpatrick's request for admission,
Afolabi admitted that he “answered [Fitzpatrick's]
intercom call and that [Fitzpatrick] inform[ed] him that he
wanted to speak with PSU, ” but Afolabi denied that
Fitzpatrick “informed defendant Afolabi he was
suicidal.” Id. at 7.
inconsistency between these statements is insufficient to
support either a default judgment or a more general discovery
sanction against Afolabi. The complaint examiner's report
reflects not Afolabi's sworn testimony but the complaint
examiner's impression of Afolabi's statement, and
inconsistency, if any, between Afolabi's admission and
answer to the interrogatory presents a question of
credibility, which a fact-finder may properly consider if the
case goes to trial. Furthermore, Fitzpatrick has not
presented evidence demonstrating that any inconsistency
between Afolabi's statements reflects a willful desire to
deceive. Fitzpatrick's motions for sanctions against
Afolabi will be denied.
has also filed a motion for sanctions under Federal Rule of
Civil Procedure 37(e)(1) against Defendants Wickman and
Eichstedt, who he alleges are responsible for the loss of
video records related to his suicide attempts on October 17,
2016. ECF No. 62. This court previously denied a motion for
default judgment on this basis under rule 37(e)(2)(C). ECF
No. 59 at 2-3. Fitzpatrick now asks this court to
“level the evidentiary playing field . . . by indulging
a presumption which supplies the lost proof.” (ECF No.
62 at 3.) Under Rule 37(e)(1), the court may, “upon
finding prejudice to another party from loss of the
information, . . . order measures no greater than necessary
to cure the prejudice.” Fitzpatrick's motion will
be denied. Presently, there is no trial scheduled in this
matter, so there is no need to contemplate the possibility of
an adverse inference instruction to the jury on this matter.
The court is well aware of Fitzpatrick's allegations with
regard to video recordings of his suicide attempts, and his
claims will receive due regard from the court as the court
considers the briefing on summary judgment.
before the court is a motion for extension of time to conduct
discovery (ECF No. 63) and a motion to compel discovery (ECF
No. 66). Fitzpatrick requests additional time for the purpose
of obtaining specific Division of Adult Institutions (DAI)
policies from the defendants, and he seeks to compel
production of those policies. This motion will be also be
denied. Fitzpatrick alleges that these policies are relevant
because he seeks to prove that the defendants acted with
deliberate indifference by failing to adhere to them.
“But ignoring internal prison procedures does not mean
that a constitutional violation has occurred.”
Lewis v. Richards, 107 F.3d 549, 553 n.5 (7th Cir.
1997) (citing Langston v. Peters, 100 F.3d 1235,
1238 (7th Cir. 1996)). This court has already denied
Fitzpatrick's motion to compel production of these
policies, ECF No. 59 at 3-4, and he has received some
policies from defendants in discovery, including at least one
policy “not typically posted to inmates.” ECF No.
66-2 at 3. Accordingly, the court will not reopen discovery
for Fitzpatrick to continue his pursuit of these policies.
the court will grant Fitzpatrick another extension of time to
respond to the defendants' motion for summary judgment,
as the court has now resolved all pending motions and
reiterated that the window for discovery has closed.
Fitzpatrick's response to the defendants' motion for
summary judgment is due on or before 30 days after the date
of this order. This extension is not for the purpose of
permitting Fitzpatrick to continue filing repetitive
discovery motions. If he fails to respond to the
defendants' assertion that there are no genuine disputes
as to any material facts within 30 days, he risks dismissal
of this case and loss of his claims. As explained in the
warning and notice accompanying the defendant's motion,
he must respond by citing to portions of the record,
including his own sworn declaration or affidavit, that
demonstrate a factual dispute.
Fitzpatrick's motion to compel ends with a conclusory
request that the court recruit counsel for the purpose of
obtaining the DAI policies. ECF No. 66 at 3. Civil litigants
do not have a constitutional or statutory right to appointed
counsel. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir.
2007) (en banc); Zarnes v. Rhodes, 64 F.3d 285, 288
(7th Cir. 1995). But district courts do have discretion to
recruit attorneys to represent indigent parties in
appropriate cases. 28 U.S.C. § 1915(e)(1). However, a
district will appoint counsel only if the indigent party
demonstrates that he has made reasonable efforts to obtain
private representation and the court further concludes that
the case is of sufficient complexity that the inmate is not
competent to litigate it himself. Pruitt, 503 F.3d
at 649, 654. Fitzpatrick has made no showing that he has
sought and been denied private representation in this matter,
and his clearly written, tenacious filings throughout the
discovery process indicate that he is sufficiently competent
to pursue his own interests in this case. His motion will
therefore be denied.
IS THEREFORE ORDERED that Fitzpatrick's motion
for default judgment (ECF No. 60), motion to stay proceedings
(ECF No. 61), motions for sanctions (ECF Nos. 62, 64), and
motion to compel discovery (ECF No. 66) are all
IS FURTHER ORDERED that Fitzpatrick's motion for
extension of time (ECF No. 63) is GRANTED in
part and DENIED in part. Fitzpatrick may
file a response to the defendants' motion for summary
judgment within 30 days of the date of this order.
IS ALSO ORDERED that Fitzpatrick's motion to
appoint counsel (ECF No. 66) ...