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Vogelsberg v. Kim

United States District Court, W.D. Wisconsin

August 13, 2019




         Pro se 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.

         Three 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 medical records.


         I will 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.[1] 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.

         Rule 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 same.

         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.

         Most of 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 rational choices.

         The 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 retardation.”

         Schizophrenia 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.

         Vogelsberg's 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 intelligence.

         Vogelsberg has provided no documentation that he suffers from dementia. And his declaration doesn't describe any symptoms related to dementia.

         As for 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.

         I am 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 ...

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