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Carter v. Maher

United States District Court, E.D. Wisconsin

April 18, 2018

TOMMIE L. CARTER, Plaintiff,
v.
JUSTIN MAHER, Defendant.

         ORDER 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)

          PAMELA PEPPER United States District Judge

         Plaintiff 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.

         1. Motion for Recusal

         In his 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. Id.

         Section 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.

         The 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 order.

         Section 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.

         The plaintiff has not stated a basis for me to recuse myself, and I will deny his motion asking me to do so.

         2. Motion to Compel

          On the 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.

         The court will grant the plaintiff's request to withdraw his motion to compel.

         3. Plaintiff's Motion to Strike

          The 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 ...


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