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Spencer v. Flynn

United States District Court, E.D. Wisconsin

March 7, 2018

JERPAUL D. SPENCER, Plaintiff,
v.
EDWARD A. FLYNN, et al., Defendants.

         DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO COMPEL (DKT. NO. 51), DENYING PLAINTIFF'S REQUEST FOR CLERK'S ENTRY OF DEFAULT (DKT. NO. 56), DENYING PLAINTIFF'S REQUEST FOR STIPULATION EXTENDING TIME LIMITS (DKT. NO. 59), DENYING PLAINTIFF'S LETTER MOTION (DKT. NO. 61), DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY (DKT. NO. 65), DENYING WITHOUT PREJUDICE PLAINTIFF'S SUPPLEMENTAL MOTION TO APPOINT COUNSEL (DKT. NO. 66), DENYING AS MOOT PLAINTIFF'S LETTER MOTION (DKT. NO. 67), DENYING AS MOOT DEFENDANTS' MOTION REGARDING PLAINTIFF'S IMPROPERLY TITLED MOTIONS (DKT. NO. 68), GRANTING DEFENDANTS' MOTION FOR EXTENSION OF DEADLINE TO FILE DISPOSITIVE MOTIONS (DKT. NO. 69), GRANTING PLAINTIFF'S MOTION FOR ORDER TO WAIVE FEES AND RULE ON PENDING MOTIONS (DKT. NO. 70), DIRECTING DEFENDANTS TO PRODUCE ALL DOCUMENTS IDENTIFIED IN THEIR RESPONSES TO PLAINTIFF'S FIRST AND SECOND REQUESTS FOR PRODUCTION OF DOCUMENTS WITHIN FOURTEEN DAYS, DIRECTING DEFENDANTS TO RESPOND TO PLAINTIFF'S THIRD REQUEST FOR PRODUCTION OF DOCUMENTS WITHIN THIRTY DAYS, AND DIRECTING THE PARTIES TO FILE DISPOSITIVE MOTIONS, TOGETHER WITH SUPPORTING MATERIALS, ON OR BEFORE MAY 25, 2018

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On August 23, 2016, District Judge Charles N. Clevert, Jr. granted the plaintiff's motion for leave to proceed without prepayment of the filing fee, and allowed the plaintiff to proceed on his Fourth Amendment claims regarding warrantless searches and a possible City of Milwaukee policy or custom of allowing, or at least encouraging, illegal searches and seizures. Dkt. No. 13 at 6. Defendant Milwaukee Police Department responded to the complaint by filing a motion to dismiss. Dkt. No. 22. All of the defendants answered the complaint. Dkt. No. 24. Judge Clevert denied as moot the Milwaukee Police Department's motion, dkt. no. 26, and entered a scheduling order, dkt. 27. On January 26, 2017, Judge Clevert entered a series of text-only orders resolving outstanding motions and extending the discovery deadline until April 1, 2017, and the dispositive motion deadline until May 1, 2017. On March 15, 2017, the case was reassigned to this court, due to Judge Clevert's impeding retirement.

         Since then, the parties have filed a number of motions, letters and requests. Despite the fact that the case had been reassigned to this court, the court did not respond to any of those documents, with the consequence that there is something of a tangle of requests and responses. The responsibility for the delay rests squarely with the court, and the court extends its apologies to the parties for that delay. The court will attempt, in this order, to untangle the knot and start the case moving forward again.

         I. Plaintiff's Motion to Compel (Dkt. No. 51)

         On February 10, 2017, the plaintiff filed a motion to compel, alleging that the defendants had not served timely responses to his first set of interrogatories and requests for production of documents. Dkt. No. 51. He stated that he'd made the demands on December 22 and 23, 2016, but that he had not received responses as of the date on his motion (February 9, 2017). Id. In opposition, the defendants argued that while the plaintiff had not tried to meet and confer prior to filing the motion-as required by Fed.R.Civ.P. 37(a) and Civil L.R. 37 (E.D. Wis.)-they would send out their responses on March 6, 2017. Dkt. No. 54.

         The defendants were correct that under the court's local rules, a party must try to work things out with the other side before filing a motion to compel; a plaintiff who is in custody can make that effort by sending a letter to opposing counsel. The plaintiff provided no proof that he did that, and under normal circumstances, that would be a reason for the court to deny a motion to compel.

         Here, however, the defendants have filed a couple of pleadings, indicating that they have provided the plaintiff with the discovery he requested. They noted this in a motion they filed on April 27, 2017. Dkt. No. 68 at 2. They explained it in more detail in a response they filed on August 24, 2017, indicating that they had received the plaintiff's December 2016 discovery demands on December 27, 2016. Dkt. No. 71 at 1. They stated that they tried to gather all the information he requested within thirty days, but they couldn't accomplish that task. Id. They indicate that they told the plaintiff at his January 27, 2017 deposition that they were working on the responses, but that they needed more time. Id. They concede that, in getting him the responses on March 6, 2017, they were late in complying with his request. Id. at 1-2. They indicated, however, that they did provide him the materials he requested, albeit thirty-eight days after the due date. Id. at 2.

         Because the defendants have responded to the plaintiff's December 2016 discovery requests, the court will deny this motion as moot.

         II. Plaintiff's Motion to Request Clerk to Enter Default (Dkt. No. 56)

         On March 6, 2017, the clerk's office received a motion from the plaintiff, asking that the clerk enter default against the defendants. Dkt. No. 56. The basis for this motion was the plaintiff's assertion that the defendants had not provided him with the discovery materials he'd requested in December 2016. (The court notes that the plaintiff filed this motion on the date that the defendants had said they'd provide him with the discovery.) The plaintiff also asked the court to require the defendants to pay him $750 as fees, costs and expenses of obtaining the order. Id. at 2.

         The defendants opposed the plaintiff's motion. Dkt. No. 60. They first argued that the plaintiff had not established default. Id. at 1-2. They also argued that the plaintiff was not entitled to payment of $750, because he had not complied with the meet-and-confer requirement before filing the motion, and because they'd provided the discovery and the plaintiff had not proved that he'd incurred $750 in costs. Id. at 2.

         Rule 55(a) of the Federal Rules of Civil Procedure requires the clerk of court to enter default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit of otherwise.” A plaintiff may seek default under Rule 55(a) when the defendant does not plead-that is, when a defendant either fails to file an answer to the complaint, or files to file some other kind of defense or response to the lawsuit.

         The court understands that because the plaintiff is not a lawyer, he may not understand the difference between pleading-responding to the filing of a lawsuit-and providing discovery. In the context of Rule 55(a), to “plead” means to answer or respond to the complaint. Here, the defendants did plead-the City filed a motion to dismiss (which is an acceptable response to a complaint), and all of the defendants answered (which is the most traditional pleading in response to a complaint). The remedy for a plaintiff who has not received discovery is not default. The remedy is for the plaintiff to meet and confer with the other side, and if that fails, to file a motion to compel.

         There is no basis for the clerk to enter default. The court will deny the plaintiff's motion for default.

         III. Plaintiff's Request for Stipulation for Extending Time Limits for Discovery (Dkt. No. 59)

         On March 23, 2017, the court received a motion from the plaintiff (which he dated March 20, 2017), asking the court to extend the deadline for completing discovery (which Judge Clevert had set for April 1, 2017). Dkt. No. 59. He explained that he hadn't received the discovery he'd requested in December 2016 until March 6, 2017, and that that left him with little time to amend his discovery requests or rebut. He asked for an additional nineteen days to complete discovery. Id.

         Obviously, had the court seen this motion at the time the plaintiff filed it, it could have taken action to avoid much of the docket activity that has ensued since. The court did not act timely on the plaintiff's motion, and it should have. The court will try to remedy that here. The court will deny this motion-the plaintiff has filed three sets of discovery demands-but will extend the deadline for the defendants to respond to all of his requests.

         IV. Plaintiff's Letter Motion for Order (Dkt. No. 61)

         On March 27, 2017, the court received a letter from the plaintiff, in which he described the difficulties he had been having conducting discovery as a pro se prisoner. Dkt. No. 61. He reiterated that he hadn't received the responses to his December 2016 discovery requests until March 6, 2017, but added that when he received the responses, the defendants told him that he would have to make a prepayment of approximately $90.00 before they would send him 161 responsive documents and two CDs. Id. The plaintiff said that in the alternative, the defendants had offered to let him go to defense counsel's office to inspect the discovery, which would be impossible for the plaintiff because he is incarcerated. Id. He explained that he was indigent, and could not afford to pay the fees defense counsel had demanded. Id. The plaintiff also reported that he had tried to gather his medical records from the Milwaukee County Jail, but that he could not pay the $35.85 prepayment the jail requested. Id. The plaintiff asked the court ...


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