United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR
FAILURE TO PROSECUTE (DKT. NO. 23) AND DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Musarra Davis, a prisoner who is representing himself, filed
a complaint alleging that the defendant violated his
constitutional rights when he was confined at the Waukesha
County Jail. Magistrate Judge William Duffin screened the
plaintiff's amended complaint and allowed the plaintiff
to proceed on a claim that the defendant acted with
deliberate indifference to his serious medical needs because
its policy prevented him from getting the medication he
needed, resulting in pain and bleeding from his rectum. Dkt.
No. 12 at 2-3. On November 13, 2018, the clerk's office
reassigned the case to this court because all the parties had
not consented to the magistrate judge's authority to
decide it. On March 11, 2019, the defendant filed a motion to
dismiss for failure to prosecute under Federal Rule of Civil
Procedure 41(b). Dkt. No. 23. A week later, the plaintiff a
motion to appoint counsel. Dkt. No. 28.
defendant has asked the court to either dismiss the case or
require the plaintiff to respond to discovery requests
(including signing an authorization for the release of his
relevant medical and mental health records) by a date
certain. Dkt. No. 23 at 1. The defendant says that it has
tried to obtain discovery from the plaintiff, but has been
unsuccessful. Id. Specifically, the defendant says
that on December 20, 2018, it served its First Set of
Discovery on the plaintiff, which included interrogatories,
requests for production of documents and thirteen
authorizations for the plaintiff to sign and return so that
the defendant could obtain certified copies of the
plaintiff's relevant correctional and private medical
records and records related to prescription medication he was
receiving before, during and after his incarceration.
Id. at 2. The defendant states that on February 4,
2019, it followed up with a letter to the plaintiff
discussing its outstanding discovery and requesting immediate
responses. Id. at 3. The plaintiff responded with a
February 9, 2019 letter directing the defendant to contact a
private attorney “seemingly to discuss the outstanding
discovery.” Id. Counsel for the defendant
contacted the attorney, who explained that his office had not
yet agreed to take the case. Id.
defendant states that it corresponded with the plaintiff on
February 19 and informed him that the attorney had not been
retained to represent him. Id. The defendant asked
the plaintiff to provide notification if he hired an attorney
and asked the plaintiff to provide discovery responses and
executed authorizations for release of the plaintiff's
relevant medical records. Id. The defendant says
that the plaintiff responded with a letter, explaining his
attempts to contact an attorney to complete discovery, but
not providing the executed authorizations. Id.
defendant asserts that the complaint attacks its medical
policies and its employees' professional judgment.
Id. The defendant also says that without information
about the plaintiff's confinement, health issues and
medical records memorializing his correctional treatment
history, it can't defend itself. Id. at 3-4. The
defendant asks the court to either dismiss the case, or to
set a reasonable deadline by which the plaintiff must provide
the defendant with access to his jail or medical records.
Id. at 4.
March 18, 2019, the court received a letter from the
plaintiff, who was writing to “explain why the first
discovery had not been completed and asking if [the court]
may a) not dismiss the case and b) provide [him] with an
attorney.” Dkt. No. 28. The plaintiff states that he
has been trying to find an attorney for the last few months.
Id. He explains that he cannot fill out the first
discovery himself because he does not have the information
available to him at the prison and he did not want to go off
memory and then “lie” and have the case dismissed
over something as trivial as bad memory. Id. The
plaintiff asks the court not to dismiss the case and to
appoint him an attorney. Id.
defendant may move to dismiss the case or any claim against
it if the plaintiff “fails to prosecute or to comply
with [the Federal Rules of Civil Procedure] or a court
order[.]” Fed.R.Civ.P. 41(b). The defendant has asked
the court to dismiss the case because the plaintiff
hasn't responded to its discovery requests. Dismissal is
an extreme sanction for a plaintiff's failure to respond
to discovery, and there are less extreme options for the
defendant to obtain the discovery it seeks. The defendant can
file a motion to compel under Rule 37, for example. Nor is it
clear that the plaintiff has “fail[ed] to
prosecute” the case, in the language of Rule 41(b). The
plaintiff has been in communication with the defendant, and
with the court; he has not abandoned his case. The court will
deny the motion to dismiss.
plaintiff should be able to respond to the defendant's
discovery demands. The defendant indicates that it has served
the plaintiff with three kinds of discovery
request-interrogatories, requests for production of documents
and blank release forms for him to sign. The interrogatories
are simply questions. They don't require the plaintiff to
provide any documents. The plaintiff needs only to answer the
questions to the best of his ability. As to the requests for
production of documents, the plaintiff should provide the
documents he has that are responsive to the requests. If he
doesn't have certain documents requested by the
defendant, he can say so. Finally, the plaintiff does not
need any information to sign releases. The releases are
nothing more than permission forms to allow various places to
give the defendant access to the plaintiff's private
records. By filing this lawsuit, the plaintiff has raised
issues about what happened to him in prison and about his
medical conditions. He can't raise those issues, and then
refuse to give the defendants access to the records that show
what happened to him in prison and his medical conditions.
All he needs to do is sign the authorization forms and return
them to the defendant's lawyer. The court will set a
deadline by which the plaintiff must comply with the
defendant's discovery demands.
November 14, 2018, the court issued a scheduling order. It
set a deadline of March 15, 2019 for the parties to complete
their discovery. That deadline has passed. The court will set
a new deadline for the parties to complete discovery, as well
as a new deadline for filing dispositive motions. The court
reminds the plaintiff that he may conduct discovery, if he
chooses-he may send questions to the defendant
(interrogatories) and ask the defendant for documents
(requests for production of documents). He should send these
requests directly to the defendant's lawyer; he should
not file them with the court. He must send the requests in
time to give the defendant at least thirty days to provide
him with responses.
court will not get involved in the discovery process unless a
party fails to respond to interrogatories or requests for
production of documents. If that happens, the party who asked
for the discovery may file a motion with the court, asking it
to compel the other side to respond, but a party can file a
motion to compel only after conferring or trying to confer
with the party failing to make disclosure or discovery. A
person cannot file a motion to compel unless that person
first tries to work things out with the other side, and any
motion to compel should describe these efforts. See
Fed. R. Civ. P 37(a); Civil L.R. 37 (E.D. Wis.).
to the plaintiff's request for counsel: in a civil case,
the court has the discretion to recruit counsel for
individuals unable to afford one. Navejar v. Iyola,
718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C.
§1915(e)(1); Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). First,
however, the plaintiff must make reasonable efforts to hire
counsel on his own. Pruitt v. Mote, 503 F.3d 647,
653 (7th Cir. 2007). To show the court that he has tried to
find a lawyer on his own, the court requires a plaintiff to
contact at least three attorneys, and to provide the court
with (1) the attorneys' names, (2) their addresses, (3)
the date and the way the plaintiff attempted to contact them,
and (4) the attorneys' responses (what they said).
the plaintiff demonstrates that he has made a reasonable
attempt to find an attorney on his own, the court will decide
“whether the difficulty of the case-factually and
legally-exceeds the particular plaintiff's capacity as a
layperson to coherently present it.” Navejar,
718 F.3d at 696 (citing Pruitt, 503 F.3d at 655).
The court looks, not only at a plaintiff's ability to try
his case, but also at his ability to perform other
“tasks that normally attend litigation, ” such as
“evidence gathering” and “preparing and
responding to motions.” Id. “[D]eciding
whether to recruit counsel ‘is a difficult decision:
Almost everyone would benefit from having a lawyer, but there
are too many indigent litigants and too few lawyers willing
and able to volunteer for these cases.'”
Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir.
2014) (quoting Olson v. Morgan, 750 F.3d 708, 711
(7th Cir. 2014)).
plaintiff says that he has attempted to find an attorney on
his own. He has provided the court with the names of two
attorneys and one law firm he has contacted. The court finds
that the plaintiff has made a reasonable attempt to find an
attorney on his own. But the court will not appoint a lawyer
for the plaintiff right now. His claim is not complicated,
and he knows what happened to him and is able to explain it.
As the court has discussed above, he can answer the
interrogatories-the questions-the defendant has asked him, he
can sign the authorizations to release records and he can
give the defendant copies of whatever documents he does have.
If, later in the case, it becomes too complicated for the
plaintiff to handle on his own, he can renew his motion to
appoint a lawyer.
court DENIES the defendant's motion to
dismiss for ...