United States District Court, E.D. Wisconsin
SECOND ORDER DIRECTING PLAINTIFF TO RESPOND TO THE
DEFENDANT'S MOTION TO COMPEL (DKT. NO. 26)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Daniel Lee Wachowiak is representing himself. He filed his
complaint on April 23, 2018; at the time he filed the
lawsuit, he was in custody at Waupun Correctional
Institution. Dkt. No. 1. Magistrate Judge Nancy Joseph
screened his complaint and allowed him to proceed on a claim
that defendant Dr. Jeffrey Manlove refused him medical help
for his foot infection in violation of the Eighth Amendment.
Dkt. No. 18 at 4. On November 6, 2018, the clerk's office
reassigned the case to this court, because one or both of the
parties did not consent to the magistrate judge's
authority to hear the case.
Wisconsin Department of Corrections Inmate Locator Service
web site shows that on November 13, 2018-about two weeks
after the case was assigned to this court-the plaintiff was
released onto extended supervision.
https://appsdoc.wi.gov/lop/detail.do. The defendant answered
the complaint on December 3, 2018, dkt. no. 22, and the
certificate of service indicates that the defendant sent the
answer to Waupun, dkt. no. 22-1. On December 10, 2018, the
court issued a scheduling order, setting the deadline for
completing discovery at April 8, 2019. Dkt. No. 23. The court
contacted the plaintiff's state probation officer and
obtained a mailing address of 1019 Arlington Place, Stevens
Point, WI 54481; that is where the court mailed the
scheduling order, and it did not come back to the court as
Wisconsin DOC inmate locator web site, however, shows that on
April 11, 2019, the plaintiff was back in custody; since then
he has been transferred to a number of facilities, and the
web site shows that he has been at Columbia Correctional
Institution since June 18, 2019.
9, 2019, the defendant filed a motion asking the court to
stay the May 10, 2019 dispositive motions deadline, because
he had not received requested discovery from the plaintiff.
Dkt. No. 24. The defendant sent the plaintiff's copy of
that motion to Waupun, although the plaintiff had not been at
Waupun for some six months. It is likely the plaintiff did
not receive that motion. The court granted the motion, and
extended the dispositive motions deadline to July 12, 2019.
Dkt. No. 25. The court also indicated that if the defendant
needed the court's assistance in getting the plaintiff to
respond to discovery demands, the proper thing to do would be
to file a motion to compel. Id.
22, 2019, the defendant did file a motion to compel the
plaintiff to sign an authorization allowing defense counsel
access to his medical records. Dkt. No. 26. The certificate
of service indicates, however, that the defendant sent that
motion to the plaintiff at Waupun, dkt. no. 26-1; again, the
plaintiff has not been incarcerated at Waupun for some seven
14, 2019, the court ordered the plaintiff to respond to the
defendant's motion to compel, telling the plaintiff that
if the court did not receive his response by the end of the
day on July 3, 2019, it could dismiss the case for failure to
diligently pursue it. Dkt. No. 27 at 2. The court's order
also noted that the plaintiff had not filed anything in the
case since August 14, 2018. Id. at 1. The court,
however, failed to check the inmate locator service, and did
not realize that the plaintiff was back in custody. The court
sent the order to the address on Arlington Place in Stevens
Point. That order has not been returned to the court, but the
court has no way to know whether the plaintiff received it.
the plaintiff's responsibility to notify the court when
his address changes, and usually the court tells the parties
that in the screening order. In this case, however, that
information was left out of the screening order. The court
does not know which documents the plaintiff has received, or
whether he knows that it is his job to notify the court when
he gets transferred or released. Because of the
plaintiff's moves out of and into custody, and because
the court neglected to notify the plaintiff that he needed to
tell the court when he is moved or transferred, the court is
going to give the plaintiff one more chance to respond to the
defendant's discovery demands before dismissing the case.
court GRANTS the defendant's motion to
compel. Dkt. No. 26.
court ORDERS that the defendant shall send the plaintiff a
medical release for the plaintiff to sign. The court ORDERS
that the defendant shall send that medical release to the
plaintiff, inmate number 520974, at Columbia Correctional
court ORDERS that if the plaintiff wants to
proceed with his case, he must sign the medical release form
and return it to the defendant's lawyer by
Friday, September 6, 2019.
court ORDERS that the dispositive motion
deadline is SUSPENDED.
court ORDERS that by the end of the day on
Friday, September 20, 2019,
counsel for the defendant must either notify the court that
the plaintiff has provided the signed medical release form
and indicate how much time the plaintiff needs to obtain and
review the records, or notify the court that the plaintiff
has not provided the signed release and ask for whatever
relief the defendant believes is appropriate.
court ADVISES the plaintiff that it is his
responsibility to notify the court and defense counsel if he
is transferred or released, and to keep the court and ...