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Gove v. Sargento Foods, Inc.

United States District Court, E.D. Wisconsin

July 26, 2019




         The 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. No. 6.

         The day 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.

         I. Background

         The 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.

         On 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. Id.

         A week 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 (signature).” Id.

         About a 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.

         A few days after Judge Jones issued the screening order, the clerk's office re-assigned the case to this court.

         On 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.” Id.

         On 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.

         Two 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. Id.

         Two 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 “” 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.

         On May 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 any issues.

         Less 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.

         Two 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.

         On May 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.

         The 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.

         Finally, 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.

         II. The Court's Initial Comments

         The 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 load.

         That 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).

         In the eleven months since the plaintiff filed his complaint, the court has presided over several trials, including a two-week civil rights trial.

         Although 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.

         III. 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. 6)

         As 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.

         The 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.

         The 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 ...

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