United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
pro se civil rights lawsuit, plaintiff Edward Max
Lewis proceeds on claims that during his stay at the Forest
County Jail from October 26, 2003, to June 28, 2004, the
defendants violated his constitutional, statutory and state
common law rights by failing to provide him with adequate
medical and mental health treatment and subjecting him to
inhumane conditions of confinement. On November 21, 2017,
Magistrate Judge Stephen Crocker issued an order granting
defendants' motion to compel. In that order, Judge
Crocker directed Lewis to return a modified form to
defendants that consented to disclosure of his medical
records from October 26, 2001, to June 18, 2014, by December
4, 2017, and warned Lewis as follows:
This court does not compel parties to disclose confidential
medical or psychiatric information if they choose not to. But
a failure to disclose this information almost certainly will
result in the court either dismissing his medical-care
related claims, precluding him from asserting a tolling
defense, or both. This is because it is not fair to
defendants for Lewis to make the sort of claims that he has
made here without giving the defendants access to the
information that underlies these claims so that the
defendants may investigate and defend against these clams.
Lewis may choose how he wishes to proceed, but he has to
choose; he cannot have it both ways.
(Dkt. #104.) Since Lewis failed to comply with that order,
defendants have filed motions for summary judgment and to
dismiss for failure to prosecute. (Dkt. ##107, 114.) Lewis
failed to respond to either opposition deadline, and instead,
on January 22, 2018, Lewis submitted a letter to the court
requesting assistance in recruiting counsel. (Dkt. #120.) For
the reasons that follow, the court is denying Lewis's
request for counsel, but will give Lewis one last
chance to comply with the November 21, 2017, order
before dismissing this case pursuant to Federal Rule of Civil
Request for assistance in recruiting counsel
initial matter, Lewis's request for assistance in
recruiting counsel will be denied. 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), and this is simply not 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). 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 Lewis is unable to represent himself.
The answer is no for the reasons that follow.
has been litigating this case since 2014 and has demonstrated
success, both procedurally and substantively, having won an
appeal of this court's initial dismissal of his case.
Lewis's filings since then continue to illustrate his
ability to write and think clearly, and the same is true with
respect to his discovery exchanges with defendants. It is
only now, when the court has informed him that he needs to
sign the medical release form and respond to defendants'
motions to avoid dismissal, that Lewis has been less engaged,
but the record does not suggest that he is incapable of
complying. Lewis represents that he was arrested in October
and November, released shortly thereafter, and then admitted
to a mental hospital in November and December. Lewis further
states that because his probation officer placed him in a
shelter and he is unable to get his mail and legal materials,
he does not have access to the information he needs to
litigate this case. Lewis adds that he is willing to sign a
medical release form if he receives one, but he thought he
was waiting for one.
representations appear to be an inappropriate attempt to
delay this lawsuit further. For one, Lewis's statement
that he was waiting for the medical release form is
contradicted by the discovery materials filed in this case.
In fact, when Lewis responded to defendants' discovery
requests, he objected specifically to defendants' request
that he sign the release form, not on the ground that he did
not receive the form, but because the “information they
seek is in excess to any issue complained of in the complaint
and contains other issues not relevant to the issues
complained of.” (Pl.'s Discovery Resp. (dkt. #76-2)
at 6.) Moreover, even assuming that Lewis lost the form,
given that he has the ability to contact the court, he
likewise has the ability contact defendants, and thus should
have requested another copy of the medical release form. As
such, the court is unconvinced that Lewis is incapable of
complying with the court's order and his request for
counsel is denied.
Defendants' motions to dismiss or for summary
to defendants' motions, they seek judgment on two
grounds: statute of limitations and failure to prosecute.
Statute of limitations
defendants seek summary judgment because, on this record,
Lewis's claims are untimely as a matter of law.
Specifically, they point out that Lewis's claims arose
during his time in the Forest County Jail between October 26,
2003, and June 28, 2004, but he did not file this lawsuit
until June 18, 2014, well beyond the six-year statute of
limitations related to his claims. Kennedy v.
Huibregtse, 831 F.3d 441, 442 (7th Cir. 2016)
(“[T]he statute of limitations for section 1983 claims
in Wisconsin is six years, ….”). Defendants'
position is that, since Lewis appears to be seeking to argue
that his statute of limitations was tolled due to a mental
incapacity, Lewis's refusal to permit defendants'
access to the materials relevant to this defense precludes
him from asserting it.
previously noted, Judge Crocker warned Lewis that if he did
not turn over the medical release authorization form by
December 4, 2017, the court may preclude him from asserting a
tolling defense. Unfortunately for Lewis, that scenario
appears to have come to fruition. To date -- four months
after the court-imposed deadline to sign the release form --
Lewis has made no effort to comply with defendants'
request. That said, the court will take Lewis at his word
that he was separated from his legal materials and that he
now is willing to sign the release form if he receives one.
Therefore, the court will give him one more chance to comply
with the November 21 order by giving him a small window of
time -- until April 20, 2018 -- to return
the modified authorization form to defendants. To ensure that
Lewis has access to the necessary materials to return that
authorization, copies of docket entries #76-1, which includes
the authorization form, and #104, Judge Crocker's order,
will be mailed to him along with this order. Failure to
comply with this order will result in the court ...