United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
plaintiff and prisoner Jeffrey Vogelsberg is proceeding on
multiple claims related to his conditions of confinement
while he was housed at the Dane County jail in 2014.
Specifically, Vogelsberg alleges that defendants failed to
provide adequate medical care for serious gastrointestinal
issues and then placed him in segregation when he complained
about the lack of care.
motions filed by Vogelsberg are before the court: (1) a
motion under Federal Rule of Civil Procedure 56(d) for an
extension of time to respond to defendants' two summary
judgment motions, Dkt. 86; (2) a motion for appointment of a
guardian ad litem, Dkt. 96; and (3) a motion to seal the
documents supporting the motion for appointment of a guardian
ad litem, Dkt. 100. For the reasons explained below, I am
denying all of these motions, with the exception that I will
require defendants to provide Vogelsberg a copy of his
begin with Vogelsberg's motion to appoint a guardian ad
litem under Federal Rule of Civil Procedure 17(c)(2) on the
ground that he is incompetent. Vogelsberg doesn't say who
prepared this motion, but he does say that “[h]e has
had the assistance of a Jailhouse Lawyer on preparing and
filing all of the documents in this Action, ” Dkt. 97,
at 7, so I assume that a jailhouse lawyer prepared this
motion as well.
17(c)(2) states that “[t]he court must appoint a
guardian ad litem-or issue another appropriate order-to
protect a[n] . . . incompetent person who is unrepresented in
an action.” Under Rule 17(b)(1), the determination
whether a person is incompetent or otherwise lacks the
capacity to sue is governed by the state law where the person
is domiciled. The domicile of a prisoner is “the state
of which he was a citizen before he was sent to prison unless
he plans to live elsewhere when he gets out, in which event
it should be that state.” Bontkowski v. Smith,
305 F.3d 757, 763 (7th Cir. 2002) (internal quotations
omitted). Vogelsberg doesn't say where he lived before
his incarceration or where he plans to go after his release,
but he assumes that Wisconsin law controls, so I will do the
Wisconsin Court of Appeals assesses mental competency in the
civil litigation context by evaluating three factors: (1) the
person's ability to reasonably understand pertinent
information; (2) the person's ability to rationally
evaluate litigation choices based upon that information; and
(3) the person's ability to rationally communicate.
Kainz v. Ingles, 2007 WI.App. 118, ¶ 52, 300
Wis.2d 670, 705, 731 N.W.2d 313, 331.
Vogelsberg's motion has nothing to do with his competency
as defined in Wisconsin law. For example, Vogelsberg says
that his claims raise complex legal and factual issues, that
he needs an expert witness to prove his claims, that his
status as a prisoner makes it difficult for him to conduct
discovery, that defendants have been refusing to provide
discovery, and that prison staff are denying him access to
the law library. But those are the kinds of issues that pro
se litigants raise when trying to show that they are entitled
to assistance in recruiting counsel. See Pruitt v.
Mote, 503 F.3d 647, 649 (7th Cir. 2007) (question on
request for counsel is whether the legal and factual
difficulty of the case exceeds the litigant's
demonstrated ability to prosecute it). The logistical and
practical difficulties a plaintiff may face in litigating a
case do not show that the plaintiff is unable to make
only allegations related to incompetence in Vogelsberg's
motion are that he suffers from several mental health
conditions: schizophrenia, posttraumatic stress disorder,
attention deficit hyperactivity disorder, oppositional
defiance disorder, depression, anxiety, and dementia.
Vogelsberg also says that he was diagnosed with
“possible learning disabilities or mental
is a serious illness, but the only medical record Vogelsberg
submitted about the illness says that his schizophrenia is
“in partial remission with medication.” Dkt.
98-1. He does not allege that he suffers from symptoms when
he is taking his medication.
only evidence about mental retardation is a discharge summary
from almost 20 years ago. Dkt. 98-4. The summary relates to a
hospitalization for threatening to harm himself. Although the
summary includes a line that Vogelsberg has “[p]ossible
learning disabilities or mental retardation, ” there is
no foundation for that conclusion in the summary. And
Vogelsberg's declaration includes no additional
information about any disabilities related to his
has provided no documentation that he suffers from dementia.
And his declaration doesn't describe any symptoms related
the other mental health conditions, Vogelsberg alleges that
they had adverse effects on him, but he doesn't allege
that they prevent him from understanding his claims or from
making rational choices. Further, I see nothing in
Vogelsberg's deposition suggesting that he is confused or
otherwise mentally impaired. See Dkt. 68. In sum, I
am not persuaded that Vogelsberg is incompetent.
also not persuaded that the case is too difficult for
Vogelsberg to litigate without counsel. Thus far,
Vogelsberg's submissions demonstrate an understanding of
the relevant legal and factual issues in ...