United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge.
Jermel Jones, an inmate currently serving a state prison
sentence at Waupun Correctional Institution and representing
himself, filed this action under 42 U.S.C. § 1983,
alleging that Defendant Joel Sankey violated his civil rights
by using excessive force against him in the form of an
incapacitating agent. On July 23, 2018, Jones filed a motion
for summary judgment. ECF No. 23. This matter now comes
before the court on Jones' motion to subpoena
correctional officers involved in the alleged incident and
for an extension of time to conduct discovery (ECF No. 28),
Sankey's motion for an extension of time to respond to
Jones' motion for summary judgment (ECF No. 29), and
Jones' second motion to appoint counsel (ECF No. 30).
Jones' motion to subpoena will be granted-in-part and
denied-in-part, Sankey's motion will be granted, and
Jones' motion to appoint counsel will be denied without
first motion explains that he seeks an order from the court
issuing subpoenas to Officer Leapold and Officer Sonntag so
that he can conduct depositions of them regarding their
actions on the day of the alleged incident. ECF No. 28. He
also seeks a 30-day extension of the August 16, 2018,
discovery deadline. Id. Federal Rule of Civil
Procedure 30(a)(1) provides that “[a] party may, by
oral questions, depose any person, including a party, without
leave of court except” under circumstances that do not
apply here. Although Rule 30(a)(1) goes on to provide that a
“deponent's attendance may be compelled by subpoena
under Rule 45, ” Rule 30(b) permits a party to conduct
a deposition merely by giving reasonable notice to the other
party regarding the time, place, and method of the
deposition, among other requirements-without resort to the
compulsory attendance that subpoenas impose.
Rule 30(b), Jones does not need a court order to conduct
depositions. But Jones does not inform the court whether he
has given notice of the requested depositions to Sankey's
counsel, nor does he indicate whether he has otherwise
attempted to confer with Sankey's counsel regarding his
desire to take these depositions. Cf. Civil L.R. 37
(E.D. Wis.). Absent some indication that communication with
Sankey's counsel and use of non-compulsory notice of
deposition procedures have been insufficient to obtain the
depositions that Jones seeks, the court will deny his motion
and decline to direct the Clerk to issue subpoenas to him at
this time. The court notes, however, that to conduct
depositions Jones must give notice to the individuals he
seeks to depose and must arrange for an oath-administering
officer and stenographer to be present at the deposition and
pay for their services. See Fed. R. Civ. P.
30(a)(1). In addition, as the party noticing the deposition,
Jones would be responsible for all costs associated
with holding the deposition. Fed.R.Civ.P. 30(b)(3)(A). The
court is not authorized to waive these costs, even for
individuals proceeding in forma pauperis pursuant to
28 U.S.C. § 1915(a).
request for a 30-day extension of the discovery deadline
will, however, be granted to permit him to make arrangements
with Sankey's counsel to conduct the depositions he
desires. The discovery deadline will therefore be extended to
September 17, 2018. Due to that extension of the discovery
deadline, the court will also extend the dispositive motion
deadline from September 17, 2018, to October 17, 2018.
has moved for an extension of time to respond to Jones'
motion for summary judgment. ECF No. 29. Jones filed his
motion for summary judgment on July 23, 2018, and
Sankey's response is therefore due on August 24, 2018.
Civil L.R. 56(b)(2) (E.D. Wis.). Sankey seeks an extension of
time until the September 17, 2018 dispositive motion deadline
to file his response. He explains that the extension would
allow him to combine his response with his own motion for
summary judgment, and he notes that the extra time will allow
him to conduct sufficient discovery to respond to the motion.
A short extension of time allowing a combined brief from
Sankey to at once respond to Jones' motion and move for
summary judgment seems likely to encourage efficient
resolution of this case. Sankey's motion will therefore
be granted, and his time to respond to Jones' motion for
summary judgment will be extended to October 17, 2018, the
new dispositive motion deadline.
Jones has also filed his second motion to appoint counsel.
ECF No. 30. The court denied Jones' first motion on July
13, 2018, noting that Jones appears capable of representing
himself and that this case is not unusually complex. ECF No.
19. Jones now contends that circumstances have changed in two
ways that warrant reconsideration of the court's
appointment decision: (1) he wrote letters to three attorneys
on July 6, 2018, in an effort to obtain representation, but
none of them have responded to him, and (2) he wants to take
the deposition of three non-defendants. ECF No. 30 at 1-2.
Even assuming that mailing three letters to attorneys
constitutes a reasonable effort to obtain representation,
Jones' desire to conduct depositions does not increase
the complexity of the case in a manner that necessitates the
recruitment of counsel to represent him. As noted above,
conducting depositions involves sending a written notice to
the individual who will undergo the deposition, making
arrangements for an oath-administering officer and
stenographer to attend, and then actually asking the witness
questions under oath. Those tasks are not beyond the
capabilities of an incarcerated individual. Jones' motion
to appoint counsel will therefore be denied, although the
denial will be without prejudice and the court will be
willing to reconsider its decision if circumstances in this
IS THEREFORE ORDERED that Jones' motion for
issuance of subpoenas and an extension of time (ECF No. 28)
is GRANTED-IN-PART and
DENIED-IN-PART. The discovery deadline is
extended to September 17, 2018, and the dispositive motion
deadline is extended to October 17, 2018.
IS FURTHER ORDERED that Sankey's motion for an
extension of time to respond to Jones' summary judgment
motion (ECF No. 29) is GRANTED. Sankey may
file his response to Jones' motion for summary judgment
with his own motion for summary judgment no later than
October 17, 2018.
IS FURTHER ORDERED that Jones' motion to appoint
counsel (ECF No. 30) ...