Owens v. Wexford Health Sources, Inc. et al

Filing 101

ORDER: The 92 Motion for Recruitment of Counsel, the 93 Motion to Compel, and the 94 Motion for Extension of Time to Complete Discovery filed by Plaintiff Owens are DENIED. The 98 Motion for Extension of Time and the 99 Motion to Join are GRANTED. Dispositive motions are due September 10, 2021. Signed by Judge Stephen P. McGlynn on 8/24/2021. (jrj)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES OWENS,
#K83253,
Plaintiff,

Case No. 17-cv-01387-SPM

v.
WEXFORD HEALTH SOURCES, INC.,
LORI CUNNINGHAM SHINKLE,
DR. JOHN COE, and
DEE DEE BROOKHART,
Defendants.

MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter is before the Court on the motion for recruitment of counsel (Doc. 92), motion
to compel discovery (Doc. 93), and motion for extension of time to complete discovery (Doc. 94)
filed by Plaintiff James Owens. Also pending before the Court are motions requesting additional
time to file dispositive motions filed by Defendants (Docs. 98, 99).
MOTION FOR RECRUITMENT OF COUNSEL
Determining whether to appoint counsel is a two-step analysis. Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007) (en banc). The Court must make the following two inquiries: (1) has
the indigent plaintiff made a reasonable attempt to obtain counsel or effectively been precluded
from doing so; and (2) given the difficulty of the case, does the plaintiff appear competent to
litigate it himself. Id. In ruling on his first request for counsel, the Court determined that Owens
had made reasonable attempts to obtain counsel on his own before seeking assistance from the
Court. (Doc. 9, p. 17-18). Now, the Court must decide “whether the difficulty of the
case―factually and legally―exceeds the particular plaintiff’s capacity as a layperson to
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coherently present.” Navejar v. Iyiola, 718 F. 3d 692, 696 (7th Cir. 2013) (quoting Pruitt, 503 F.
3d at 655).
Owens claims that he is in need of court recruited counsel because of his inability to
conduct discovery. (Doc. 92). He is no longer housed at Lawrence Correctional Center, where the
alleged constitutional violations occurred. Rules implemented by the Illinois Department of
Corrections limit his ability to send mail to individuals at other facilities and have hindered his
ability to investigate his case and find witnesses to the events alleged. Due to COVID-19
restrictions, he has had limited law library time and access to his legal boxes. Additionally, since
being transferred to Pinckneyville Correctional Center (“Pinckneyville”), he is now missing two
property boxes containing legal documents for all of his pending cases. Since he has no discovery
in this case, he will not be able to draft a response to a motion for summary judgment and
adequately represent himself for the duration of this case.
The Court finds that this case does not factually and legally exceed Owens’s “capacity as
a layperson to coherently present it.” Navejar, 718 F.3d at 696 (internal citations and quotations
omitted). Owens is proceeding on a single count against four defendants for repeated lapses in
receipt of his medications. The legal and factual issues involved in this case do not seem too
difficult for Owens, who is a college graduate and an experienced litigator in this district. 1 Owens
has consistently demonstrated he can clearly communicate with the Court and litigate this case.
His motions and responses frequently contain citations to numerous supporting exhibits and
caselaw. Although he claims he had difficulties during the discovery phase, as more fully discussed

See Owens v. Blagojevich, No. 06-cv-00380-DRH-CJP; Owens v. Ill. Dep’t of Corr., No. 13-cv-00530-SCW, Owens
v. Ill. Dep’t of Corr., No. 13-cv-00594-MR-SCW; Owens v. Butler, No. 14-cv-00055-SPM; Owens v. Duncan, No.
14-cv-00510-MJR-SCW, Owens v. Duncan, No. 14-cv-01093-SCW; Owens v. Butler, No. 15-cv-00327-SMY-RJD;
Owens v. Duncan, No. 15-cv-00999-MJR; Owens v. Baldwin, No. 15-cv-01085-NJR; Owens v. Duncan, No. 15-cv01143-MJR-SCW; Owens v. Duncan, No. 15-cv-01169-MJR-SCW; Owens v. Lamb, No. 17-cv-00667-SMY; Owns
v. Lamb, No. 17-cv-00997-SPM-GCS.
1

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below, his lack of discovery has been his own doing. Owens has not demonstrated any effort to
engage in discovery. Rather, he points generally to common hindrances experienced by many pro
se prisoner plaintiffs during litigation, such as limited access to the law library and his legal
documents. The Court finds that Owens has the intellectual capacity and experience to continue
prosecuting his claims pro se. Accordingly, his motion is denied.
MOTION TO COMPEL DISCOVERY
Owens asks the Court to compel Defendants to produce a number of documents, including
medical records, grievances, and medication logs. (See Doc. 93, 94, 97). He claims that he
requested the documents at his deposition on July 8, 2021, and Defendants refused to provide him
the discovery. Defendants respond that the other than the verbal request made at his deposition,
Owens never served any written discovery. (Doc. 95, p. 2; Doc. 96, p. 2). Because there is no
discovery to compel, they ask the Court to deny the motion.
Federal Rule of Civil Procedure 37 allows a party to move to compel when the opposing
party fails to produce requested documents. FED. R. CIV. P. 37(a)(3)(B). When seeking a court
order compelling disclosure, the motion “must include a certification that the movant has in good
faith conferred or attempted to confer with the person or party failing to make the discovery in an
effort to secure the information or material without court action.” FED. R. CIV. 37 (a)(1).
It is not entirely clear whether Owens is seeking to compel the production of new discovery
documents never received or initial disclosures he received from Defendants in December 2019
(see Doc. 94, p. 1), but have subsequently gone missing after he transferred facilities in April 2021.
To the extent he is seeking new discovery, Owens does not assert that he ever sent Defendants
written discovery requesting the desired documents. The Court will not compel production of
documents never requested. He has also not shown that he first attempted to resolve the discovery
dispute informally prior to involving the Court. A singular conversation with Defendants at his
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deposition, after the discovery deadline had expired on May 10, 2021, is not sufficient to meet the
requirement of making a good faith effort to confer with Defendants as require in Rule 37. Thus,
motion is denied to the extent he is requesting documents not yet produced.
The Court will also not compel Defendants to produce to Owens copies of documents from
other civil cases or reproduce hundreds of pages of initial disclosures. Owens claims that he was
transferred from Taylorville Correctional Center (“Taylorville”) to Pinckneyville on April 2, 2021.
(Doc. 94, p. 1). Only three of his five excess legal boxes were successfully transferred to
Pinckneyville. In the two missing legal boxes were grievances from 2001-2018, money vouchers,
medical records, datebooks, and other case documents from pending and closed cases. The missing
boxes also have documents for this case. (Doc. 97, p. 1). He alleges that at his deposition, he
informed Defense Counsel that he was missing documents and requested they “resupply the
discovery and obtain the missing discovery which is filed in [his] case 15-cv-1169.” (Doc. 94, p.
2). Owens informed them that the documents could be found in the docket of Owens v. Duncan,
No. 15-cv-1169, Doc. 86, Exhibit A, but Defense Counsel refused to produce the documents. (Doc.
97, p. 2).
The Court will not compel Defendants to reproduce all discovery already provided to
Owens in this case; nor will Defendants be required to provide Owens documents from other
unrelated cases. Exhibit A from Owens v. Duncan is an attachment to his response to the motion
for summary judgment filed in that case. Exhibit A is one hundred sixteen pages, which include
copies of Owens’s date book and prescription records. At anytime, Owens may request copies
from the Court by filing a motion and prepaying the filing fee of $.50 per page. The Court notes
that Defendants have not yet filed motions for summary judgment, and Owens’s claim that he
needs copies of these court records in order to oppose Defendants’ requests for judgment as a
matter of law is premature.
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EXTENSION OF TIME TO COMPLETE DISCOVERY FILED BY PLAINTIFF
The Court also denies the motion for extension of time to complete discovery. The
discovery deadline expired May 10, 2021. Owens argues that he has been unable to conduct
discover due to no fault of his own. While at Taylorville, he was sent to segregation on June 26,
2020, and remained there for seven weeks. During this time, he was not given access to his legal
documents and his case notes were lost. At Taylorville, he also did not have adequate time in the
law library or to access to his legal boxes. After he was transferred to Pinckneyville on April 2,
2021, he did not receive indigent supplies, including envelopes, and two of his legal boxes have
gone missing which contain documents for this case. Finally, he claims he did not know the
deadline for discovery until he was able to access his legal boxes on June 14, 2021.
The Court may amend the scheduling order for good cause. FED. R. CIV. P. 16(b). “When
considering whether good cause exists, ‘the primary consideration for district courts is the
diligence of the party seeking amendment.’” J.F. by Sifuentes v. Abbott Lab., Inc., No. 14-CV847-NJR-SCW, 2017 WL 992781, at *2 (S.D. Ill. Mar. 15, 2017) (quoting Alioto v. Town of
Lisbon, 651 F.3d 715, 720 (7th Cir. 2011)).
Here, Owens has not demonstrated that he acted with diligence in attempting to adhere to
the deadlines set in the scheduling order. A scheduling order was entered on July 10, 2020, setting
the discovery deadline for May 10, 2021. (Doc. 74). For a majority of the discovery period, Owens
was housed at Taylorville. Other than stating that he had limited access to the law library and his
legal documents, he has not provided an explanation for why he was unable to conduct any
discovery during these eight months. He filed a motion for reconsideration on September 4, 2020,
on April 23, 2021 he notified the Court that he had been transferred to Pinckneyville, and on May
10, 2021, he filed an answer to the Court’s Show Cause Order. (Docs. 78, 84, 87). He did not
indicate in any of these filings that additional time would be needed in order to complete discovery.
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On May 28, 2021, the Court entered an order allowing Defendants additional time to take Owens’s
deposition and reset the dispositive motion deadline for August 11, 2021. (Doc. 91). Again, Owens
did not file a motion with the Court for additional time to conduct discovery. It was not until two
months after the deadline had passed did Owens seek to amend the scheduling order. Because
Owens did not use the time given to even attempt to obtain discovery, and he has not specified
what type of discovery he is requiring, any additional time would be futile and only prolong
litigation unnecessarily. Accordingly, the Court does not find good cause to amend the scheduling
order, and the motion for extension is denied.
MOTION FOR EXTENSION OF TIME FILED BY DEFENDANTS
Defendants Cunningham-Shinkle and Brookhart request an additional thirty days to file
dispositive motions. (Doc. 98). Defense Counsel states that she did not receive a copy of the
deposition transcript until August 9, 2021, due to email issues. She also claims that in the last thirty
days she has had six depositions, a Pavey hearing, and responded to several motions and discovery
requests. Codefendants, Wexford Health Sources, Inc. and Dr. Coe, request the same extension for
consistency of deadlines. (Doc. 98, 99). They also state that as of August 11, 2021, they have not
received Owens’s verification or errata corresponding to his deposition testimony and transcript.
Because Owens’s deposition was not taken until July 8, 2021, the Court finds good cause
to allow Defendants additional time to prepare and file dispositive motions. Dispositive motions
are due September 10, 2021.
DISPOSITION
For the reasons stated above, the motion for recruitment of counsel (Doc. 92), the motion
to compel discovery (Doc. 93), and the motion for extension of time to complete discovery (Doc.
94) filed by Plaintiff James Owens are DENIED.
The motion for extension of time (Doc. 98) filed by Defendants Lori Cunningham-Shinkle
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and Dee Dee Broohart and the motion to join filed by Defendants Wexford Health Sources, Inc.
and Dr. John Doe (Doc. 99) are GRANTED. Dispositive motions are due September 10, 2021.
IT IS SO ORDERED.
DATED: August 24, 2021
_s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

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