United States District Court, E.D. Wisconsin
GRANTING PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYING
FILING FEE (DKT. NO. 2), DENYING PLAINTIFF'S MOTION TO
DISMISS MAGISTRATE JUDGE'S ORDER (DKT. NO. 6), DENYING
PLAINTIFF'S MOTION TO COMPEL (DKT. NO. 12), QUASHING
SUBPOENA, DENYING PLAINTIFF'S MOTION FOR STATUS
CONFERENCE (DKT. NO. 14) AND GIVING PLAINTIFF A DEADLINE OF
AUGUST 30, 2019 BY WHICH TO FILE SECOND AMENDED
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, representing himself, filed a complaint on August
29, 2018, dkt. no. 1, and a motion to proceed without
prepaying the filing fee, dkt. no. 2. Six weeks later,
Magistrate Judge David Jones issued an order requiring the
plaintiff to file an amended complaint by November 9, 2018.
Dkt. No. 5. Over two weeks before that deadline, the
plaintiff filed a document titled “Motion to Request
the Order Directing Plaintiff to File Amended Complaint by
Magistrate Judge David E Jones To Be Dismissed.” Dkt.
before the deadline Judge Jones had set, the court received
from the plaintiff an amended complaint. Dkt. No. 7. Since
then, the plaintiff has filed a motion to compel production
of documents, dkt. no. 12, and a motion for a status
conference, dkt. no. 14. This order addresses the
plaintiff's motion for waiver of the filing fee, denies
the plaintiff's other pending motions and screens the
plaintiff's amended complaint. Because the amended
complaint does not state a claim upon which relief can be
granted, the court will give the plaintiff a deadline by
which to pay a partial filing fee and by which to file a
second amended complaint.
plaintiff filed his complaint on August 29, 2018 and, as is
required by this court's policy, the clerk's office
randomly assigned the case to Magistrate Judge David E.
Jones. Dkt. No. 1.
September 6, 2019, the court received from the plaintiff a
Consent to Proceed Before a Magistrate Judge form. Dkt. No.
4. There was a case number on the form-18-CV-1335, which is
the case number for this case. But no one had written the
name of the plaintiff or the name of the defendant in the
caption. There was a signature at the bottom of the form, but
there was no box marked to indicate whether the signature
belonged to the plaintiff, the defendant or someone else.
later, on September 14, 2018, the plaintiff re-filed the
Consent to Proceed Before a Magistrate Judge Form. Dkt. No.
4. He included a cover letter, which stated, “Please
file -be on safe side. -didn't have Plaintiff checked
Thank you.” Id. at 1. This time, the box for
“Plaintiff/petitioner (attorney or pro se litigant) was
marked below the signature line. Id. at 2. There was
also a handwritten note at the bottom of the form that said,
“Called ECF Help Desk 866-438-5410 WI523 on 9-11-18.
Spoke to Mary about not checking the Plaintiff box. -She said
it was filed as refused. They could read my handwriting
month later, on October 10, 2014, Judge Jones
“screened” the plaintiff's complaint. As
Judge Jones explained in his October 10, 2018 order, 28
U.S.C. §1915 requires a court to verify two things
before authorizing a plaintiff to proceed without prepaying
the filing fee: (1) that the plaintiff is unable to pay the
filing fee; and (2) that the case “is not frivolous nor
malicious, does not fail to state a claim on which relief may
be granted, and does not seek monetary relief against a
defendant that is immune from such relief.” Dkt. No. 5
at 1 (citing 28 U.S.C. 1915(a) and (e)(2)). Dkt. No. 5 at 1.
Judge Jones did not analyze whether the plaintiff had the
ability to pay the filing fee; he went right to the
allegations in the complaint and concluded that they were
“not sufficient for the Court to determine whether [the
plaintiff] states a claim on which relief may be
granted.” Id. at 3. Judge Jones explained that
[a]lthough it appears as though [the plaintiff] is making a
retaliation claim, he must provide more detail about what
happened, who was involved, and what each person did.
Further, [the plaintiff] states that he was discriminated
against in violation of Title VII but does not provide any
facts to raise a right to relief above the speculative level.
[The plaintiff] must provide detail about who discriminated
against him, what discriminating acts occurred, and whether
the discrimination was based on race, religion, or some other
class protected by law.
Id. Judge Jones gave the plaintiff a chance to amend
the complaint, but cautioned the plaintiff that the amended
complaint would supersede his original complaint-meaning that
any claims that he'd made in the original complaint that
he didn't include in the amended one would be deemed
“withdrawn” by the court. Id. He ordered
the plaintiff to file an amended complaint on or before
November 9, 2018. Id. at 4.
days after Judge Jones issued the screening order, the
clerk's office re-assigned the case to this court.
October 24, 2018-about ten days after the clerk's office
had reassigned the case to this court-the court received the
“Motion to Request the Order Directing Plaintiff to
file Amended Complaint by Magistrate Judge David E Jones to
be Dismissed.” Dkt. No. 6. The plaintiff began by
noting that in September 2018 he'd filed his refusal to
consent to the magistrate judge's authority, but after
driving an hour and a half back home, he'd realized that
he hadn't marked the “plaintiff” box on the
form. Id. at 1. He said that he'd called the
clerk's office the next day and learned that the form had
been rejected as illegible. Id. He noted that
he'd re-sent the form the next week. Id. He said
that he received Judge Jones's screening order on October
12, 2018, and said that the question he was pondering was why
his case had been assigned to a magistrate judge when
he'd asked, in writing and in person with a clerk's
office employee, to have his case assigned to a district
court judge. Id. at 2. He acknowledged that he had
since received something telling him that the case had been
reassigned to Judge Pepper. Id. He expressed concern
that “someone in your courthouse would . . . do a favor
for a friend or for money, by deliberately filing the
documents wrongly.” Id. He complains that the
error “will cost me additional monies at a time when a
tight budget is essential.” Id. He stated that
he did not “need anyone in the Federal Court system
assisting [the defendant] or their attorneys in any of their
endeavors that is out of the scope of normal business
practices, ” and expressed the hope that “this
was just a clerical error.” Id. The plaintiff
also asked for more time to file the amended complaint (if he
still needed to do so), indicating that he was trying to find
a lawyer. Id. Finally, he asked for an investigation
into “how this so-called error happened.”
November 8, 2018-the day before the deadline Judge Jones had
set-the court received from the plaintiff a document
captioned “Order Directing Plaintiff to File Amended
Complaint.” Dkt. No. 7. It appears that the plaintiff
intended this document to be an amended complaint. He
indicated that the original complaint had incorrectly
reflected the date on which he was terminated-the original
complaint had said April 19, 2018, but the correct date was
April 30, 2018. Id. at 1. He then went on to list
“notable occasions on which [he] was harassed, and or,
discriminated against at Sargento Foods INC.”
Id. This five-page document was not on the
court's complaint form and did not contain the words
“Amended Complaint.” The plaintiff attached
nineteen pages of letters, notes and other documents. Dkt.
No. 7-1. Among these documents was a Dismissal and Notice of
Rights form from the Equal Opportunity Commission dated June
15, 2018, informing the plaintiff that the EEOC was not going
to bring suit on his behalf, but that he had ninety days from
the receipt of the notice to file his own lawsuit.
Id. at 16.
months later, the court received a letter from a lawyer
representing Sargento Foods. Dkt. No. 9. The letter indicated
that on December 18, 2019, “Sargento's process
server was hand-delivered a copy of Plaintiff's August
29, 2018 Complaint.” Id. Counsel indicated
that Sargento would not be responding to the complaint, given
its understanding that the plaintiff had filed an amended
complaint and the court had not yet screened that document.
months later, the court received a letter from the plaintiff.
Dkt. No. 10. The letter described a late February 2019
incident at a Menard's store in Appleton, Wisconsin,
where the plaintiff had encountered a former work colleague.
Id. The letter asserted that the former work
colleague had “forcibly, violently” struck the
plaintiff in the shoulder. Id. at 1. The plaintiff
alleged that this act “was a deliberate, premeditated
assault” which “add[ed] to [his] story about the
circle of abuse, which occur[ed] due to [his] association
with Sargento Foods INC.” Id. Two days later,
the clerk's office received a letter from the plaintiff,
informing the clerk that he intended to serve a subpoena on
Menards for production of “the surveillance
video.” Dkt. No. 11. The plaintiff asked whether he
ought to serve Menards with the subpoena and give a copy to
defense counsel or vice versa, and asked whether he was
required to copy defense counsel on documents he files with
the court. Id. at 2. He concluded by indicated that
he had emailed the Eastern District Bar Association and
“FreeLegalAnswers.org” for free legal advice, but
that no one had responded; he said he had “pages of
questions” to ask. He also indicated that he'd been
trying to find a lawyer, without success. Id.
9, 2019, the court received from the plaintiff a
“motion to compel production of documents.” Dkt.
No. 12. The motion stated that on March 11, 2019, he had
served on Menards a subpoena that he obtained from the Green
Bay branch of the district court; he said that his
understanding was that “it didn't matter” if
the subpoena was “notarized” in Milwaukee or in
Green Bay, as long as it was issued by the federal court for
the Eastern District of Wisconsin. Id. at 1. He
stated that he'd asked Menards for the video of the
incident on three occasions, without receiving it.
Id. at 2. He also indicated that there had been a
hearing in state court regarding a temporary restraining
order, during which “[i]t was made clear to
everyone” that Menards had “been subpoenaed for
the surveillance video footage” and that the plaintiff
was waiting for a reply. Id. Th plaintiff asked the
court to compel Menards to comply with the subpoena, to award
him costs and fees and to give him an opportunity to address
than a week later, the court received a request from the
plaintiff, asking for an update on the status of his
subpoena. Dkt. No. 13. He said that the matter was urgent
because there was a “sensitive window in obtaining the
evidence that could disappear.” Id. He also
stressed that the video was “factual evidence that will
provide a direct-link to the my [sic] Petition against
Sargento Foods INC.” Id.
days after his request for an update, the plaintiff filed a
motion for a status conference on the motion to compel,
reiterating that the matter was urgent. Dkt. No. 17.
21, 2019, non-party Menard, Inc. filed a response to the
plaintiff's motion to compel discovery. Dkt. No. 15. The
response asserted that the plaintiff violated various of the
Federal Rules of Civil Procedure in serving Menard's with
a subpoena. Id. It asked the court to deny the
plaintiff's motion to compel production and to quash the
subpoena. Id. at 10. Menard's attached several
documents to the response, including a copy of the subpoena.
Dkt. No. 15-1 at 6.
court received the plaintiff's first reply brief on May
29, 2019. Dkt. No. 16. He asked the court to give him an
extension of time to file a full reply, but also responded to
some of the arguments in Menard's response. Id.
at 1-2. The court received the plaintiff's second reply
on June 3, 2019; it asked the court to reject Menard's
objections and compel Menard's to respond to the
subpoena. Dkt. No. 17.
on June 13, 2019, the court received a set of documents from
the plaintiff. Dkt. No. 18. It's not clear why the
plaintiff filed these documents; they appear to be letters
between the plaintiff and various people at Sargento and at
Menard's. There are twenty pages of documents in this
most recent filing.
The Court's Initial Comments
Milwaukee division of the Eastern District of Wisconsin is
assigned four district court judges and three magistrate
judges. Over three years ago, however, one of the three
district court judges became very ill; he passed away in
early September 2016. While this meant that there were only
three active district court judges handling a case load meant
for four, the court was lucky enough at the time to have a
“senior” district judge carrying a full case
judge, however, fully retired in March 2017. Since then, the
three remaining district court judges have handled a case
load meant for four, and the number of cases being filed has
steadily increased. At present, this court has some five
hundred civil cases and a heavy load of criminal cases (many
of which have multiple defendants, and several of which are
scheduled for trial).
eleven months since the plaintiff filed his complaint, the
court has presided over several trials, including a two-week
civil rights trial.
the clerk's office assigned this case to Judge Pepper in
October 2018, the court is only now able to review it. The
combination of the court's delay in reviewing the case
and the plaintiff's frequent filings has created a
procedural tangle. The court regrets that its delay has
contributed to this tangle. It hopes to get the case back on
track with this order.
The Plaintiff's Motion to Request the Order Directing
Plaintiff to File Amended Complaint by
Magistrate Judge David E Jones to be Dismissed (Dkt. No.
discussed above, the plaintiff did not consent to a
magistrate judge issuing the final judgment in his case. The
court received his first refusal on September 6, 2018, dkt.
no. 3, but because the plaintiff didn't fill out all the
boxes and blanks on the form, the clerk's office had
trouble reading his signature. The plaintiff talked to a
clerk's office staff member and re-filed the form on
September 14, 2018. Dkt. No. 4. Nonetheless, the case did not
get reassigned to Judge Pepper for another month, and in the
meantime, Judge Jones issued his screening order.
court first addresses the plaintiff's concern that the
reassignment was delayed because of some conspiracy or
collusion between the court's staff and the defendant,
and his request that the court investigate why his case was
not reassigned immediately upon the court's receipt of
his documents. In September 2018, the court had a policy
requiring that before the clerk's office could reassign a
case based on lack of consent, the court had to receive the
completed consent forms from all the parties in the case. In
September 2018, the court had received the
plaintiff's refusal to consent, but it had not
received one from the defendant. This was because the court
had not yet ordered the complaint to be served on the
defendant. Under the court policy in effect at the time,
however, the clerk's office could not reassign the case
until it received a consent form from the defendant.
judges of the Eastern District changed that policy on October
15, 2018, due to some problems that had arisen. (In fact, one
of those problems was just the one that arose in the
plaintiff's case-in cases involving self-represented
plaintiffs who ask to waive the filing fee, it can take weeks
or months for a defendant to be served and return the consent
form.) On the day the judges voted to change the policy, the
clerk's office reassigned every case in which one party
had filed a refusal to consent. The plaintiff's case was
one of the many cases that got reassigned from a magistrate
judge to a district court judge on that day. The delayed
reassignment of the plaintiff's case was not due to
conspiracy or collusion between the clerk's office ...