Buy This Entire Record For
Stapleton v. Carr
United States District Court, W.D. Wisconsin
October 25, 2019
NORMAN STAPLETON, PAUL ADAMS, CRAIG BATES, DUANE BULL, CAMERON CANADY, SCOTT COAKLEY, KENNETH GRAY, DAVID FOLEY, TIMOTHY GIBSON, JAMES HAMILTON, STEPHEN KOZLOWSKI, THOMAS KURUC, WILLIE MCGEE, ALLEN OWENS, MICHAEL PASKEL, JAMES SMITH, TYRONE SMITH, SEAN TATE, and MICHAEL VAN CASTER, Plaintiff,
KEVIN CARR, RANDALL R. HEPP, EDWARD WALL, JON LITSCHER, GARY HAMBLIN, CATHY JESS, MARC W. CLEMENTS, JOY TASSLER, MICHAEL McCORMICK, PAT CHAMBERLAIN, and JOHN MAGGIONCALDA, Defendants.
D. PETERSON, DISTRICT JUDGE.
case is about the safety of the water at the Fox Lake
Correctional Institution. I previously consolidated nine
individual prisoners' cases under this case number, and
after consolidation, plaintiffs have amended the complaint to
join several more prisoners. See Dkt. 87. Two sets
of defendants have filed motions for summary judgment, Dkt.
99 and Dkt. 105, and plaintiffs followed with a motion for
preliminary injunctive relief. Dkt. 130. Those motions are
fully briefed. But some of the plaintiffs have expressed
dissatisfaction with their representation.
Tyrone Davis Smith and Michael Van Caster have stated their
desire to end counsel's representation, sever their cases
from the other plaintiffs', and have new counsel
recruited. Dkt. 113. Smith followed up with a formal motion
to sever, Dkt. 114. From Smith and Van Caster's letter, I
take Van Caster to be seeking severance as well. They say
that counsel is not representing their best interests, and
that counsel has expressed pessimism about the likelihood of
success on their claims because the court-appointed water
expert's report is unfavorable to them. Smith and Van
Caster also say that counsel chose not to challenge the state
defendants' failure to file their summary judgment motion
by the dispositive-motions deadline. Davis provides a
declaration from another plaintiff, Allen Owens, who says
that counsel has decided not to litigate specific issues
about each plaintiff's health concerns, instead focusing
on the presence of hazardous chemicals in the water.
See Dkt. 116 (Owens's declaration); Dkt. 124
(plaintiffs' summary judgment opposition
brief). Davis asks the court to “delve
further into the actions or inactions of [counsel] to
determine whether grounds [have] been laid to form basis of
appointment of new counsel.” Dkt. 114.
Smith and Van Caster to be terminating counsel's
representation and asking for recruitment of new counsel.
Generally speaking, plaintiffs have the right to fire their
counsel if they so choose, so I will grant their motions to
sever their cases-No. 17-cv-396-jdp for Smith and No.
18-cv-1009-jdp for Van Caster. I previously dismissed Van
Caster's case for failure to properly amend his
complaint, but plaintiffs' second amended complaint fixes
that problem. I'll vacate the judgment in the '1009
case and reopen it.
that means that if the case survives summary judgment, Smith
and Van Caster will go it alone in their cases, representing
themselves pro se. I previously warned plaintiffs that if
they did not agree to recruited counsel's representation,
it would be highly unlikely that I would find new counsel to
represent them. I'm allowing them to fire recruited
counsel because it is their right to do so, not because there
is anything in the record that suggests that counsel have
provided substandard representation that warrants
replacement. Smith and Van Caster simply appear to disagree
with choices made by counsel.
assessment of the likelihood of success on the case and
choice of issues on which to focus in summary judgment
briefing are not reasons to consider recruiting new counsel.
Nor is counsel's decision declining to challenge the late
filing of the state defendants' motion for summary
judgment. The state defendants filed that motion on July 22,
2019. Smith and Van Caster believe that this was about a
month late because the dispositive-motions deadline was June
28. But the state defendants' summary judgment motion is
not nearly as late as plaintiffs believe. The
dispositive-motions deadline had been set to June 28, but
plaintiffs filed an unopposed motion to extend the
dispositive-motions deadline to July 19, Dkt. 91, and that
motion was granted, Dkt. 92. So the state defendants'
motion was only three days late. In conjunction with his
motion to sever his case, Smith has filed a motion to strike
the late summary judgment motion. Dkt. 118. But I will not
strike a marginally late motion where there was no prejudice
to plaintiffs in general or Smith or Van Caster in
particular. I'll deny Smith's motion to strike.
has also filed a motion for plaintiffs' counsel to
provide him with a copy of the record, Dkt. 117, which I will
grant. Counsel should promptly forward both Smith and Van
Caster a copy of counsel's file.
Norman Stapleton has also filed documents related to
counsel's representation. Stapleton submitted a copy of a
letter he sent counsel explaining that he wanted counsel to
include in the summary judgment opposition evidence that
Stapleton informed prison staff that he was harmed by the
water because his high blood pressure made him particularly
susceptible to harm from lead. Dkt. 120-1. Stapleton has also
filed a motion to stay the case because he has not received a
copy of plaintiffs' materials opposing summary judgment;
he asks for either counsel or the court to send him a copy of
those materials. Dkt. 133.
Stapleton to be saying that he is considering terminating
counsel's representation as well, but that he can't
make that decision without seeing the summary judgment
materials. I'll grant Stapleton's motion by directing
counsel to send Stapleton a copy of the summary judgment
opposition materials if they have not already done so.
I'll give Stapleton a short time to decide whether he
also wishes to terminate counsel's representation. If
Stapleton does so, he'll be in the same boat as Smith and
Van Caster: I won't recruit new counsel for him, and if
the case survives summary judgment, he will have to represent
1. Plaintiffs Tyrone Davis Smith's and Michael Van
Caster's motions to sever their cases, Dkt. 113 and Dkt.
114, are GRANTED.
2. Smith's claims will proceed in No. 17-cv-396-jdp.
3. Van Caster's claims will proceed in No.
18-cv-1009-jdp. The judgment in that case is VACATED and ...