United States District Court, E.D. Wisconsin
JERPAUL D. SPENCER, Plaintiff,
EDWARD A. FLYNN, et al., Defendants.
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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
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.
Plaintiff's Motion to Compel (Dkt. No. 51)
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.
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.
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.
the defendants have responded to the plaintiff's December
2016 discovery requests, the court will deny this motion as
Plaintiff's Motion to Request Clerk to Enter Default
(Dkt. No. 56)
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.
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.
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.
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
is no basis for the clerk to enter default. The court will
deny the plaintiff's motion for default.
Plaintiff's Request for Stipulation for Extending Time
Limits for Discovery (Dkt. No. 59)
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.
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.
Plaintiff's Letter Motion for Order (Dkt. No.
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 ...