United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
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
Motions for Assistance in Recruiting Counsel (dkts. ##34, 55,
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
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.
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.
Motion for Leave to Amend Complaint (dkt. #54)
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.
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.
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)).
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.
Motions requesting stay and to compel (dkts. ##58,
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.
court now turns to the parties' motions for summary
judgment, beginning with the material facts.
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.
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.
DOC Inmate Classification Process
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
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 ...