United States District Court, W.D. Wisconsin
MATTHEW C. STECHAUNER, Plaintiff,
PATRICK MURPHY, PHILIP WHEATLEY, TROY SHEIDE, GARY NEAU, and DORRIE HANSEN, Defendants. MATTHEW C. STECHAUNER, Plaintiff,
PAUL KEMPER, LAVAIL JAMISON, DANA BROWN, and KIM EINWALTER, Defendants.
D. PETERSON, DISTRICT JUDGE.
plaintiff Matthew Stechauner has two cases pending in this
court. Stechauner v. Murphy, Case No. 17-cv-221;
Stechauner v. Kemper, Case No. 17-cv-582. Defendants
in both cases filed a motion to take Stechauner's
deposition on March 21, 2019, and the court granted the
motion. Dkt. 105 ('221 case); Dkt. 82 ('582 case).
Stechauner has now filed a motion for a protective order
prohibiting defendants from deposing him. Dkt. 106 ('221
case); Dkt. 83 ('582 case). I will deny the motion.
may seek leave to depose a prisoner if the deposition will
allow the party to discover “any nonprivileged matter
that is relevant to any party's claim or defense.”
Fed.R.Civ.P. 30(a)(2)(B) and 26(b)(1). And here, both of
Stechauner's lawsuits involve claims that he hopes to
prove, at least in part, through his own testimony at trial.
So Stechauner's testimony at deposition is not only
relevant to his claims, but central to them. Defendants may
take Stechauner's deposition to learn his version of
events and how he plans to testify at trial.
gives three reasons why he should not have to sit for
deposition, but none are persuasive. First, he contends that
the deposition is improper because the parties have already
briefed their summary judgment motions. But there is no rule
that depositions must be taken before filing a summary
judgment motion. On the contrary, the court specified that
discovery would continue until April 19 in the '221 case,
and May 17 in the '582 case, long after summary judgment
motions were due.
Stechauner contends that he has a right to appointment of
counsel before being deposed. But litigants in civil cases do
not have a constitutional right to counsel, and I do not have
the authority to appoint counsel to represent a pro se
plaintiff in a civil matter. Rather, I can only assist in
recruiting counsel who may be willing to serve voluntarily.
See 28 U.S.C. § 1915(e)(1); Pruitt v.
Mote, 503 F.3d 647, 654, 656 (7th Cir. 2007) (en banc).
In determining whether to recruit counsel for a pro se
litigant, the relevant question is whether the complexity of
the case exceeds the plaintiff's ability to litigate it.
Pruitt, 503 F.3d at 653.
not convinced that a deposition will be too complex for
Stechauner to handle on his own. To sit for a deposition,
Stechauner does not need to have a knowledge of the law or
make complex legal arguments. He simply needs to answer
defendants' questions and tell his side of the story. If
Stechauner's claims survive summary judgment, I will
reconsider whether he needs a lawyer to represent him at
trial. But I will not recruit counsel to represent him for
Stechauner says that he has mental health issues and is on
psychoactive medication that will make him too sedated for
deposition. But he does not explain what these medications
are, and the exhibit that he attached to his motion does not
support this contention. See Dkt. 83-1 (Although
Stechauner reports having anxiety, he presents as
“coherent, oriented, alert, and cooperative.”).
In any event, Stechauner does not need to perform complex
actions during the deposition-he needs only to answer
defendants' questions and tell them what he remembers.
asks if he may plead the Fifth Amendment during the
deposition. The Fifth Amendment guarantees that no person
“shall be compelled in any criminal case to be
a witness against himself.” U.S. Const. Amend. V
(emphasis added). The privilege against self-incrimination
applies in civil lawsuits, like this one, only when an
individual's answers to questions might incriminate him
in future criminal proceedings. LaSalle Bank Lake View v.
Seguban, 54 F.3d 387, 389 (7th Cir. 1995). It does not
give a plaintiff the right to refuse to answer any questions
that may harm his case.
his deposition, Stechauner may invoke his privilege against
self-incrimination and refuse to answer a question if-and
only if-he reasonably believes that answering the question
will reveal information that could lead to a new criminal
prosecution against him. Stechauner should also be aware that
if he invokes his Fifth Amendment privilege, defendants will
be able to use that as evidence against him in the case.
See U.S. S.E.C. v. Lyttle, 538 F.3d 601, 604 (7th
Cir. 2008) (refusal to testify may be used as evidence
against party in civil case).
ORDERED that plaintiff Matthew Stechauner's motion for a
protective order, Dkt. 106 in Case No. 17-cv-221 and ...