United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. Magistrate Judge.
Al Holifield, who is representing himself, moves for an order
compelling discovery and for limited appointment of counsel.
(ECF Nos. 46 & 47.) This order will address each motion.
Motion to Compel
asserts that defendant Joseph Zawikowski has not
“fully” answered interrogatories 1 through 15.
(ECF No. 46 at 1.) He submitted Zawikowski's response
with his motion. (ECF No. 45.) Holifield asserts that he
received no answers to the interrogatories, yet the document
he submitted shows Zawikowski provided answers to each of the
fifteen interrogatories. (ECF No. 46 at 1; see ECF
No. 45 at 1-4.) Holifield does not explain why he believes
Zawikowski's responses are not “full” or
describe what detail was omitted.
also seeks to compel Zawikowski to produce alleged footage
from his “police body worn camera of the incident on
6-22-16, ” which he requested in his interrogatories.
(ECF No. 46 at 3.) Zawikowski responded that any footage of
the incident was “not properly saved to the incident
report and/or misfiled and/or corrupted and has therefore not
been able to be located with due diligence. If, the footage
is at some later point located, it will be provided.”
(ECF No. 45 at 4.) Zawikowski also apparently turned over the
available body-camera video footage to Holifield during
discovery. (See Id. at 2 (directing Holifield to
“body Cam Videos located at Bates Labeled HOL-MPD
111112-000020).) There does not appear to be any other
available footage for Zawikowski to turn over to Holifield.
notes that Zawikowski did not file an affidavit in support of
the defendants' motion for summary judgment or a
“Request to Admit” that two of the other
defendants submitted. (ECF No. 46 at 2.) But not every
defendant need submit an affidavit in support of a motion for
summary judgment. A moving party need submit only any
affidavits or declarations it intends to use to support its
motion. See Fed. R. Civ. P. 56(c)(4).
requests that Zawikowski pay his “reasonable expenses
in obtaining this order, ” under Fed.R.Civ.P.
37(a)(5)(A). (Id. at 3.) He asserts he is entitled
to that relief because the defendants refused to answer the
interrogatories or disclose discovery. (Id.)
Local Rule 37 requires parties to first attempt to work out a
discovery dispute informally, amongst themselves, before
involving the court. If that is unsuccessful, a party may
file a motion to compel, but the motion must include a
certification that efforts to informally resolve the dispute
failed. This rule exists because parties are often able to
reach an agreement before involving the court, which saves
both the parties and the court time and resources.
does not certify that he attempted to resolve the discovery
disputes with the defendants. Zawikowski's responses to
his interrogatories show that the materials he seeks either
have been provided or are not available to be given to him.
And there is no penalty for Zawikowski not having submitted
an affidavit or declaration in support of the motion for
summary judgment. That the defendants did not include a
declaration from Zawikowski in their materials in support of
their motion suggests they believe one is not needed.
Holifield's motion to compel will be
DENIED. Because the court is denying the
motion, he is not entitled to any reasonable expenses under
Motion to Appoint Counsel
moves for the appointment of counsel “for
‘limited purposes' to help the plaintiff locate and
serve a subpoena on Brian Avery, ” related to the June
22, 2016, incident. (ECF No. 47.) He asserts that he
“cannot prove his case without either the
defendant's sworn statements or Brian Avery sworn
statements.” (Id. at 1.) Holifield states that
he does not know how to locate Avery, and his “only
other option” is to have a lawyer depose Zawikowski to
learn Avery's whereabouts. (Id.)
civil case, the court has the discretion to recruit counsel
for individuals unable to afford counsel. Navejar v.
Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C.
§1915(e)(1); Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
“[D]eciding whether to recruit counsel ‘is a
difficult decision: Almost everyone would benefit from having
a lawyer, but there are too many indigent litigants and too
few lawyers willing and able to volunteer for these
cases.'” Henderson v. Ghosh, 755 F.3d 559,
564 (7th Cir. 2014) (quoting Olson v. Morgan, 750
F.3d 708, 711 (7th Cir. 2014)).
exercising this discretion, the court must consider two
things: “(1) ‘has the indigent plaintiff made a
reasonable attempt to obtain counsel or been effectively
precluded from doing so,' and (2) ‘given the
difficulty of the case, does the plaintiff appear competent
to litigate it himself?'” Pennewell v. Parish
et al.,923 F.3d 486, 490 (7th Cir. 2019), (quoting
Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007)).
To satisfy the first element, the court must determine that a
plaintiff made a good faith effort to hire counsel.
Pickett v. Chicago Transit Authority,930 F.3d 869,
871 (7th Cir. 2019). To do so, the plaintiff must show he
contacted at least ...