United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
who is incarcerated at the Wisconsin Secure Program Facility,
filed a pro se complaint claiming his civil rights
were violated. See (Docket #1). Before the Court are
Plaintiff's motion for an extension of time to complete
discovery and file dispositive motions, (Docket #25), his
motion to compel discovery responses, (Docket #26), and his
third motion requesting the appointment of counsel, (Docket
#27). For the reasons stated below, the motions will be
Motion for Extension of Time and Motion to Compel Discovery
the Court will address the motion for extension of time and
the motion to compel discovery responses, which are related
to each other. In the motion for extension of time, Plaintiff
complains that he inadvertently failed to properly serve
written discovery requests on Defendants. (Docket #25 at 1).
He e-filed the requests with the Court on January 17, 2018
rather than serve them directly on Defendants by mail or
other agreed-upon means, as the procedural rules require.
Id.; (Docket #22).
March 7, 2018, nearly two months after he e-filed the
requests, he wrote to Defendants and learned that Defendants
did not plan to respond to them, as service was not proper.
(Docket #25 at 2). Further, there was insufficient time
remaining prior to the April 2, 2018 discovery cutoff date
even if he properly re-served the requests. Id.
Plaintiff asks the Court for an extension of the discovery
deadline and the dispositive motion deadline to afford him
time to re-serve his discovery requests, pleading that in
light of his pro se status he was confused about the
discovery procedures. Id.
motion is without merit. It is unfortunate that he became
confused about the procedural rules applicable to his case,
but even pro se litigants are expected to
familiarize themselves with the rules that govern proceedings
in this Court. Moreover, the Court clearly and unmistakably
warned Plaintiff of the requirements for serving discovery
requests in its scheduling order, issued on October 13, 2017.
(Docket #19). The Court stated that:
All requests for discovery shall be served by a date
sufficiently early so that all discovery is completed no
later than Monday, April 2, 2018. The plaintiff is instructed
that discovery requests must be served on the defendant to
whom they are directed by mail or other means of delivery.
Simply filing discovery requests with the Court, either
electronically or by mail, will not qualify as service of
those requests pursuant to the Federal Rules of Civil
Id. at 2. The Court issues this warning in every
prisoner case in order to avoid the very error Plaintiff made
here. He is responsible for carefully reading and complying
with the Court's orders. Additionally, the Clerk of the
Court sent Plaintiff a similar notice after he e-filed his
discovery requests in January, informing him that discovery
requests must not be filed with the Court. (Docket #23).
Again, he seems to have ignored this instruction.
Plaintiff gives no reason why he waited until two months
after the discovery period opened in October 2017 to try to
serve his discovery requests on Defendants. Had he done so
earlier, he might have learned of his error in service in
time to correct it. Filing a motion to save himself from this
error mere days before the discovery deadline-his motions
were filed on March 28, 2018-does not elicit sympathy.
similar reasons, the Court will deny Plaintiff's motion
to compel. (Docket #26). In it, Plaintiff asks the Court to
compel responses to a set of discovery requests he sent to
Defendants on March 12, 2018. (Docket #26 at 1). That date is
only three weeks from the April 2 discovery cutoff date.
Plaintiff did not afford Defendants the full thirty days they
are entitled to under the discovery rules to prepare and
serve their responses. As such, Plaintiff's discovery
requests violate the Court's scheduling order, which
warned him to serve his discovery requests
“sufficiently early so that all discovery is
completed no later than Monday, April 2, 2018.”
Id. (emphasis added). Defendants cannot be forced to
rush to make up for Plaintiff's belated attempts at
these reasons, both the motion for extension of time and the
motion to compel must be denied.
Third Motion for Appointment of Counsel
alleged discovery dilemma dovetails into his other pending
request: that he needs the assistance of counsel in light of
his failure to properly navigate discovery. (Docket #27 at
1-2). Yet, as a civil litigant, Plaintiff has no automatic
right to court-appointed counsel. Luttrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997). However,
under 28 U.S.C. § 1915(e)(1), the “court may
request an attorney to represent any person unable to afford
counsel.” The court should seek counsel to represent
the plaintiff if: (1) he has made reasonable attempts to
secure counsel; and (2) “‘the difficulty of the
case-factually and legally- exceeds the particular
plaintiff's capacity as a layperson to coherently present
it.'” Navejar v. Iyiola, 718 F.3d 692, 696
(7th Cir. 2013) (quoting Pruitt v. Mote, 503 F.3d
647, 655 (7th Cir. 2007) (en banc)).
Seventh Circuit has emphasized that “[t]he question is
not whether a lawyer would present the case more effectively
than the pro se plaintiff; ‘if that were the test,
district judges would be required to request counsel for
every indigent litigant.'” Pruitt, 503
F.3d at 655 (quoting Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006)) (internal quotation omitted).
Instead, “[t]he question is whether the plaintiff
appears competent to litigate his own claims, given their
degree of difficulty, and this includes ...