United States District Court, W.D. Wisconsin
DAVID D. AUSTIN II, Plaintiff,
JUDY P. SMITH, EDWARD WALL, REXFORD SMITH, and JON LITSCHER, Defendants.
D. PETERSON District Judge.
David D. Austin II, a former prisoner at Oshkosh Correctional
Institution (OCI), alleges that the plexiglass sheets
covering the windows of the cells in certain blocks of OCI
cause the cells to be extremely hot and potentially unsafe.
He is proceeding against defendants on claims that they are
deliberately indifferent to the unreasonable health and
safety risks posed by the permanently closed windows in the
cells in violation of the Eighth Amendment, that they
transferred inmates to units containing the dangerous cells
without due process in violation of the Fourteenth Amendment,
and that sealing the windows in specific units of the prison
constitutes arbitrarily unequal treatment in violation of the
March 9, 2017, I allowed the case to proceed as a class
action under Federal Rule of Civil Procedure 23(b)(3). Dkt.
49. A month later, Magistrate Judge Stephen Crocker set the
litigation schedule for the case, culminating in a July 30
trial. Dkt. 51. In January 2018, Judge Crocker extended the
dispositive motion deadline by one month at Austin's
request with a warning that “Judge Peterson does not
intend to move the July 30, 2018 trial date.” Dkt. 73;
see also Dkt. 75. Later that month, I approved
Austin's proposed class notice and directed him to mail
it to each class member by February 26, 2018. Dkt. 83 and
Dkt. 86. On March 2, the parties filed their summary judgment
motions and defendants moved to decertify the class.
See Dkt. 102; Dkt. 103; Dkt. 114; Dkt. 123. Now,
Austin moves to extend the briefing schedule on the summary
judgment and decertification motions, to extend the deadline
for disclosing damages expert reports, and to supplement the
list of class members previously filed with the court, citing
difficulties in obtaining discovery concerning the class
members. Dkt. 146 and Dkt. 147.
with the list of class members. It appears that the list of
potential class members, which was prepared with the
assistance of the Wisconsin Department of Corrections (DOC),
was incomplete. The parties have now updated the records.
Austin asks for permission to supplement the class list he
previously filed with his proposed notice. As a procedural
matter, Austin does not need to formally supplement the class
list. The real issue is that notice was not sent to some
class members by the February 26 deadline. So I will construe
Austin's motion as one for leave to extend the deadline
for mailing class notices. I will grant the motion and set a
now to the deadline extensions Austin seeks. The
parties-specifically Austin and the “state
defendants” (all defendants other than Edward
Wall)-have had trouble completing discovery of potential
class members' DOC records, especially their medical
records. I won't address the specifics of those discovery
issues because it appears that counsel are working together
to resolve these issues and neither side has filed a motion
to compel or a motion for a protective order. But Austin
contends that several extensions are necessary because he has
not yet received much of the discovery he has requested. He
wants the deadlines for the parties' summary judgment
responses and damages expert disclosures extended to
“60 days from receipt of sufficient medical, health
services, and social services records” and the
decertification response deadline extended until after the
court's ruling on summary judgment. Dkt. 147, at 3. The
state defendants do not expressly oppose Austin's motion.
They admit that they still have “at least 500, 000 more
pages” of discovery to produce, which they anticipate
disclosing to Austin within the next few weeks. Dkt. 153, at
5. Wall opposes Austin's requests, except as to the
damages-expert-disclosure deadline. Wall argues that he
isn't involved in the discovery production issues and
that Austin hasn't shown a need for the additional
discovery in relation to Wall's summary judgment motion.
clear that the parties require more time to obtain the
voluminous records needed to litigate this class action. So
despite my earlier intention of not moving the trial date, I
will grant Austin's motion in part and allow him to
review pertinent discovery that he previously requested
before responding to defendants' summary judgment and
decertification motions and before disclosing his damages
expert reports. To keep the litigation as orderly as
possible, I will keep Wall's summary judgment motion on
the same schedule as the other motions. But Austin has not
justified the lengthy, open-ended deadlines he requests-60
days is an unreasonable amount of time to complete opposition
briefing after receiving pertinent discovery, considering
that the court's standard schedule allows for 21 days,
and there is no apparent reason to delay briefing on the
decertification motion even more. So I will direct the clerk
of court to set a scheduling conference before Judge Crocker
to schedule a single deadline for Austin's damages expert
disclosures and all opposition briefs to the pending summary
judgment and decertification motions, to be scheduled
approximately 21 days after the state defendants expect to
complete production of the discovery Austin has already
requested, and to reset the remainder of the trial calendar
in light of these modifications. The parties should be
prepared to present to Judge Crocker a reasonable estimate of
the discovery-completion date.
1. Plaintiff David Austin's motion for leave to extend
the deadline for mailing class notices, Dkt. 146, is GRANTED.
Plaintiff may have until April 17, 2018, to mail notice to
each class member.
2. Plaintiff's motion to extend the litigation schedule,
Dkt. 147, is GRANTED in part.
3. The clerk of court is directed to set a scheduling
conference before Magistrate ...