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Covington v. Wisconsin Department of Corrections

United States District Court, W.D. Wisconsin

March 12, 2018

REO COVINGTON, Plaintiff,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Pro se plaintiff Reo Covington is proceeding in this lawsuit against the Wisconsin Department of Corrections (“DOC”) on a claim under the Americans with Disabilities Act (“ADA”) and Rehabilitation Act. Specifically, in December of 2015, Covington requested to participate in DOC's substance abuse treatment program, the Earned Release Program (“ERP”), and he believes that his request was denied because of his persistent mental illness. Now before the court are several non-dispositive motions filed by plaintiff (dkts. ##34, 53, 54, 55, 58, 59, 68), plaintiff's motion for partial summary judgment (dkt. #43), and defendant's motion for summary judgment (dkt. #48). In this opinion, the court first addresses plaintiff's non-dispositive motions, and then explains why the evidence of record requires judgment in defendant's favor.[1]

         OPINION

         I. Motions for Assistance in Recruiting Counsel (dkts. ##34, 55, 68)

         In multiple motions requesting assistance of counsel, Covington notes that: he is not a lawyer; he has never been successful in other lawsuits; he lack financial resources to hire an attorney; he suffers from paranoid schizophrenia; and his claim is more complex than he is prepared to handle. Unfortunately, the starting point for all such requests is that there is no general right to counsel in civil cases. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). Rather, courts have discretion to grant motions for assistance in recruiting counsel where a party meets several requirements. Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010). The court is satisfied that Covington has established both that he is unable to afford counsel and has made reasonable efforts to find a lawyer on his own without success, but it is simply not apparent that this is one of those relatively few cases in which the legal and factual complexities of the case exceeds the plaintiff's ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This is the case even accepting as a fact that Covington suffers from a mental illness. Wheeler v. Radtke, 694 F. App'x. 1023, 1026 (7th Cir. 2017) (affirming denial of request for counsel despite prisoner's mental health issues because prisoner's filings showed that he understood the relevant legal issues). Indeed, the operative question is not whether a lawyer will do a better job than he can -- that is almost always the case -- but rather whether practically speaking Covington is unable to represent himself. Even accounting for his mental health challenges, the answer is no for the reasons that follow.

         As set forth in greater detail below, Covington's claim in this lawsuit turns on: (1) whether he was qualified to participate in Wisconsin's ERP; and (2) if so, whether the DOC nonetheless denied him access to that program because of his disability. While ultimately Covington's claim fails as a matter of law, the court is satisfied that Covington has been able to represent himself adequately as to both issues. For one, Covington has submitted responses to defendant's proposed findings of fact and submitted his own proposed findings of fact, as well as briefing materials in support of his motion for partial summary judgment and in opposition to defendant's motion. His filings are clear and on point, and he consistently cites to relevant case law and facts of record. Furthermore, Covington has submitted multiple pieces of evidence that document his requests to participate in the ERP, as well as relevant discovery responses received from the DOC. All of this illustrates that Covington has been capable of serving discovery on the DOC, following the Federal Rules of Civil Procedure and this court's procedures, and most importantly, drafting coherent motions and legal briefs.

         More specifically, those materials highlight that Covington not only understands the required elements of his claim, but was able to present meaningful evidence and thoughtful arguments in support of those elements. Accordingly, while the court is sympathetic to the challenges Covington faces in light of his mental health difficulties, he has demonstrated his ability to meet the demands of representing himself in this lawsuit. As such, the motions for assistance in recruiting counsel will be denied.

         II. Motion for Leave to Amend Complaint (dkt. #54)

         On August 25, 2017, Covington filed a motion asking the court to permit him to amend his complaint to add a Fourteenth Amendment Equal Protection claim to this lawsuit, arguing that the court erred in denying him leave to proceed on a claim that the DOC exercises a policy or practice that treats inmates with a mental health code of Mh-2a differently. That request will also be denied.

         While Covington's claim in this lawsuit stems from an expressed belief that he has been discriminated against, his present motion was the first time since the court's screening order in which he has expressed a continued desire to proceed with a Fourteenth Amendment Equal Protection Clause claim. To the contrary, after the court explained that Covington's first amended complaint violated Rule 20, Covington informed the court on October 3, 2016, that he wanted to proceed on his claims under the ADA and Rehabilitation Act (dkt. #23), on which he was granted leave to proceed against the DOC on December 9, 2016. (Dkt. #28.) On February 14, 2017, Magistrate Judge Stephen Crocker further issued the preliminary pretrial conference order in this case explicitly informing Covington that: (1) to amend his complaint he would need to seek leave of court; and (2) the longer he waited to move to amend, the less likely his motion would be granted. (Dkt. #33, at 3.) Covington never sought reconsideration of the court's order, nor did he seek leave to amend his complaint until August of 2017, which was after the date defendant had already filed its motion for summary judgment and plaintiff had filed his own motion for partial summary judgment.

         Covington's explanation for this lengthy delay is that he needed counsel to pursue his equal protection claim, which is not particularly persuasive given that Covington has actively advocated for himself throughout these proceedings on more complicated matters. Moreover, it is unclear what an equal protection claim would add to the plaintiff's pending ADA and Rehabilitation Act claims. Regardless, the defendant would be prejudiced by this late addition of a new claim. Accordingly, the court will deny plaintiff's motion to amend. See Life Plans, Inc. v. Security Life of Denver Ins. Co., 800 F.3d 343, 357-58 (7th Cir. 2015) (district courts should “allow amendment unless there is a good reason -- futility, undue delay, undue prejudice, or bad faith -- for denying leave to amend”) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

         Even if the court were to excuse Covington's delay, his request to amend would be denied as futile because he is not a member of a protected class. Covington would have to prove that the DOC had no rational basis for excluding him from the ERP to succeed on a Fourteenth Amendment Equal Protection claim in this context. St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 639 (7th Cir. 2007) (absent membership in a suspect class recognized by equal protection case law, plaintiff “must allege facts sufficient to overcome the presumption of rationality that applies to government classifications”). As explained below, the DOC advanced a number of undisputed justifications for denying Covington access to the ERP. Having submitted insufficient evidence to establish a genuine, factual dispute regarding the DOC's justifications for denying his participation in the ERP in response to defendant's motion for summary judgment on his ADA and Rehabilitation Act claims, the grant of Covington's motion to amend would not change the outcome of this litigation.

         IV. Motions requesting stay and to compel (dkts. ##58, 59)

         In these two motions, Covington points out an error in defendant's proposed findings of fact, specifically that paragraphs 9 and 10 are missing, and requests an order compelling defendant to provide those paragraphs, as well as an order staying his deadline to respond to defendant's motion for summary judgment. Neither request will be granted. As defendant credibly explains, the absence of paragraphs 9 and 10 is a typographical error, and it did not rely on anything from those missing paragraph numbers. Even if that were not the case, any information left out would be privileged work product, to which plaintiff would have no discovery right. Regardless, Covington wisely submitted his response to defendant's motion for summary judgment, ripening defendant's motion for summary judgment, along with his own motion for partial summary judgment.

         V. Summary Judgment

         The court now turns to the parties' motions for summary judgment, beginning with the material facts.

         A. Undisputed Facts[2]

         1. Background

         On August 25, 2008, Covington was convicted and sentenced in Dane County Circuit Court to five years imprisonment in Case Number 2002CF0913 for Robbery with Use of Force, to be followed by five years of extended supervision. The sentencing judge in that case determined that Covington was not eligible for Wisconsin's ERP. On August 29, 2008, Covington was placed at the Dodge Correctional Institution (“Dodge”) to serve that sentence, and then released on extended supervision on June 12, 2009, having served slightly less than one year of his five-year prison sentence. Based on charges for a further attempted robbery, Covington was taken back into custody in December of 2011, and his extended supervision was formally revoked on February 27, 2012. Covington was again placed at Dodge on March 7, 2012, with a status of “returned from extended supervision.” On April 7, 2014, Covington pled guilty in Dane County Circuit Court Case N. 2012CF32 to Attempted Robbery with Threat of Force. This time, Covington was sentenced to prison for three years and two years and six months of extended supervision, to be served consecutive to any other sentence currently being served. Unlike the judge in Case No. 2002C913, however, the sentencing judge in Case No. 2012CF32 concluded that Covington was eligible for the ERP. Before Covington could be eligible for ERP, however, he had to finish the prison sentence imposed in 2002CF0913.

         As of December 2015, Reo Covington was incarcerated by the DOC at Racine Correctional Institution (“Racine”). He is currently incarcerated at the Oshkosh Correctional Institution (“Oshkosh”). Because Covington has a diagnostic history of multiple, psychiatric disorders, the DOC has assigned him a mental health code of MH-2a, meaning that he has a severe and persistent mental illness.

         2. DOC Inmate Classification Process

         The Bureau of Offender Classification and Movement (“BOCM”) is responsible for determining the custody, placement and program needs of inmates pursuant to Wis. Admin. Code § DOC 302. All inmates are initially classified by BOCM staff upon arrival at the inmate intake center in the Division of Adult Institutions (“DAI”). The purpose of custody classification is to determine appropriate inmate placement. An inmate is classified under one of the following five custody classification levels, each requiring different levels of monitoring, behavior and activities: (1) maximum, (2) medium custody, (3) medium-out custody, (4) minimum custody, and (5) community custody. Wis. Admin. Code § DOC 302.05. BOCM staff are to consider numerous factors in assigning a custody classification:

a. The nature and seriousness of the offense the inmate was convicted of. In evaluating the seriousness of the offense, the department may consider the following:
i. Potential of physical danger to another.
ii. Harm done to the victim in the commission of the offense.
iii. Whether the inmate exhibited physical aggressiveness that exposed another to harm.
iv. Aggravating or mitigating factors in the commission of the offense for which the ...

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