United States District Court, E.D. Wisconsin
TOMMIE L. CARTER, Plaintiff,
JUSTIN MAHER, Defendant.
DENYING PLAINTIFF'S MOTION FOR RECUSAL (DKT. NO. 27),
GRANTING PLAINTIFF'S REQUEST TO WITHDRAW MOTION TO COMPEL
(DKT. NO. 34), WITHDRAWING MOTION TO COMPEL (DKT. NO. 28),
DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE (DKT. NO.
32), DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT.
NO. 37) AND DENYING PLAINTIFF'S MOTION FOR AN
INVESTIGATION (DKT. NO. 38)
PEPPER United States District Judge
Tommie L. Carter is a Wisconsin state prisoner representing
himself. He filed a complaint alleging that the defendant,
Officer Justin Maher, did not give him his inhaler or alert
medical staff when the plaintiff suffered an asthma attack.
Dkt. No. 1. On October 10, 2017, Magistrate Judge David E.
Jones screened the complaint and allowed the plaintiff to
proceed on an Eighth Amendment claim of deliberate
indifference to a serious medical need. Dkt. No. 10 at 6-7.
The clerk's office later reassigned the case to this
court because the defendant did not consent to a magistrate
judge presiding over his case. Dkt. No. 13. The plaintiff has
filed a motion for recusal, dkt. no. 27, a motion to compel,
dkt. no. 28, a motion to strike his January 23, 2018, letter,
dkt. no. 32, a motion to appoint counsel, dkt. no. 37 and a
motion for an investigation, dkt. no. 38.
Motion for Recusal
January 24, 2018, motion for recusal, the plaintiff asks that
I recuse myself from his case, stating that I am
“purportedly colluding with the defendant and their
attorney against the plaintiff.” Dkt. No. 27 at 1. The
plaintiff asserts that he believes that I will prejudge this
case based on my “long professional and social
relationship with the defendant['s] attorney . . .
.” Id. In support of this argument, the
plaintiff asserts that, while I am “fully aware”
that the defendant answered the complaint in December, 2017,
I have “deliberately refused” to send him a
scheduling order, and have ignored his request for one.
144 of Title 28 of the United States Code says that if a
party files a timely and sufficient affidavit “that the
judge before whom the matter is pending has a personal bias
or prejudice either against him or in favor of any adverse
party, ” that judge must reassign the case to another
judge. The statute says that the affidavit has to
“state the facts and the reasons for the belief that
bias or prejudice exists.” The court is willing to
consider the plaintiff's motion to be an
“affidavit.” But it does not state sufficient
facts showing that I am personally biased or prejudiced
against him. According to the court docket, the defendant is
represented by an attorney named Ann M. Peacock, from the
Wisconsin Department of Justice in Madison, Wisconsin. As far
as I recall, I don't know an attorney named Ann Peacock
with the Wisconsin Department of Justice; if ever I have met
her in the past, I do not remember having done so. I
don't have a “long professional and social
relationship” with Attorney Peacock; I don't have
any relationship with Attorney Peacock.
plaintiff says that the proof that I am biased against him is
that I have not issued a scheduling order in his case. But I
have issued a scheduling order. I issued that order
on January 22, 2018-a little over a month after the defendant
answered the complaint. Dkt. No. 26. That order set a
discovery deadline of May 25, 2018, and a deadline for filing
dispositive motions of June 29, 2018. Id. I am
sending a copy of that order to the plaintiff along with this
455 of Title 28 requires a judge to disqualify herself
“in any proceeding in which [her] impartiality might
reasonably be questioned.” It also requires a judge to
recuse herself if she has a personal bias or prejudice
against any party, or personal knowledge of disputed facts. I
don't know the plaintiff, Mr. Carter, and I don't
have any reason to be biased or prejudiced against him. I
don't know defendant Justin Maher, and have no reason to
be biased in his favor. It did take me over a month
after the defendant answered to issue the scheduling order;
that is due in great part to the fact that, because of the
death of one judge on this court and the retirement of
another, we are short-handed, and the number of cases filed
in our court has increased. To my regret, this means that I
am behind on many cases. I wish that I were not. My delay in
issuing orders is not the result of bias or prejudice; it is
the result of the amount of work that results from a case
load of hundreds of criminal and civil cases.
plaintiff has not stated a basis for me to recuse myself, and
I will deny his motion asking me to do so.
Motion to Compel
same date that the court received his motion for recusal, the
court received from the plaintiff a motion to compel
discovery. Dkt. No. 28. The plaintiff states that in December
2017, he served on the defendant a request for production of
documents, admissions and interrogatories, but that the
defendant did not respond in thirty days. Dkt. No. 29. In
response, the defendant states that, as he informed the
plaintiff, discovery could not start until the court issued
the scheduling order (on January 22, 2018), and says that he
explained to the plaintiff that he would respond to the
plaintiff's discovery requests thirty days after January
22. Dkt. No. 33. In his reply, the plaintiff says that while
he previously incorrectly thought that the court had colluded
with the defendant by refusing to timely issue a scheduling
order, he now realizes that because of the court's heavy
hearing calendar in December 2017 and trial in January 2018,
it could not issue orders during that time. Dkt. No. 34. The
plaintiff states that he therefore wants to withdraw his
motion to compel. Id.
court will grant the plaintiff's request to withdraw his
motion to compel.
Plaintiff's Motion to Strike
plaintiff sent the court a letter dated January 23, 2018 (the
court received it on January 25), in which he reiterated his
assertion of “collu[sion]” between the court and
the defendant. Dkt. No. 31. Based on his letter, the
plaintiff appears to take issue with the amount of time it
took for the court to issue a scheduling order ...