Boclair v. Lashbrook et al
Filing
211
ORDER DENYING 182 MOTION for Issuance filed by Stanley Boclair; DENYING WITHOUT PREJUDICE 192 MOTION for Sanctions filed by Stanley Boclair; DENYING 193 MOTION for Order to filed by Stanley Boclair; WITHDRAWING 198 MOTION for Extens ion of Time to Complete Discovery filed by Stanley Boclair; DENYING 200 MOTION for Permission to filean Interlocutory Aopeal and Proceed without Prepaying Fees filed by Stanley Boclair; FINDING AS MOOT 201 MOTION for Leave to Proceed in fo rma pauperis filed by Stanley Boclair; DENYING 203 MOTION to Amend/Correct 182 MOTION for Issuance filed by Stanley Boclair; DENYING 204 MOTION to Subpoena ad Testificandum filed by Stanley Boclair; DENYING 205 MOTION to Subpoena Duces Tecum Jerry Willhoft filed by Stanley Boclair; and GRANTING 207 MOTION to Withdraw 199 Supplement,, and 198 MOTION for Extension of Time to Complete Discovery filed by Stanley Boclair. The Court Clerk is DIRECTED to provide Plaintiff with two subpoena forms (AO88B), blank and unsigned. Signed by Magistrate Judge Reona J. Daly on 5/12/2023. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANLEY BOCLAIR,
Plaintiff,
v.
JACQUELINE LASHBROOK, et al.,
Defendants.
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Case No. 18-cv-1188-RJD
ORDER
DALY, Magistrate Judge:
Plaintiff Stanley Boclair, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional
rights were violated while he was incarcerated at Menard Correctional Center (“Menard”). In his
complaint, Plaintiff alleges he was subjected to cruel and unusual punishment when members of
the Orange Crush tactical unit handcuffed him in a stress position on August 4, 2017, causing
severe pain and injuring his left shoulder. Plaintiff proceeds on ten counts alleging deliberate
indifference under the Eighth and Fourteenth Amendments against Defendants John Baldwin,
Jacqueline Lashbrook, Barry Myers, Michael Laminack, Philip Royster, Joshua Cornstubble, John
Koch, Justin Engelage, Carson Winters, and Ezra Hunter (see Doc. 63).
This matter is now before the Court to address a number of motions filed by Plaintiff. The
Court’s discussion and decision as to each is set forth below.
Motion for Issuance of Subpoenas (Doc. 182) and Motion to Amend Subpoena Request in
Document 182 (Doc. 203)
In these motions, Plaintiff seeks to subpoena Drs. Bret Miller and Naveen Saini. In his
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motion at Doc. 182, Plaintiff seeks documents, as he clarified he brings the subpoenas “duces
tecum” (see Docs. 184, 210), and in his motion at Doc. 203, it appears Plaintiff is seeking the
testimony of Drs. Miller and Saini.
With regard to Dr. Miller, Plaintiff’s document and deposition subpoena requests are
identical. Plaintiff seeks the following regarding Dr. Miller’s medical opinion: (1) identification
of Plaintiff’s condition that was addressed on April 20, 2018 at Herrin Hospital with a total
arthroplasty of his left shoulder, and Plaintiff’s anticipated quality of life following the procedure;
and (2) whether Plaintiff would be exaggerating in saying that nine months prior to surgery he
cried out while being handcuffed behind the back for approximately one and one-half hours sitting
with his head held down.
Plaintiff’s document and deposition subpoenas directed to Dr. Saini are also identical and
seek the following: whether the findings of the December 8, 2017 MRI of Plaintiff’s left shoulder
taken at St. Elizabeth’s Hospital in O’Fallon, IL could have occurred prior to August 4, 2017.
The Court has previewed the subpoenas directed to Drs. Saini and Miller and DECLINES
to issue the same. See FED. R. CIV. P. 26(b)(2)(C), 45(c); Marozsan v. United States, 90 F.3d
1284, 1290 (7th Cir. 1996). First, with regard to Plaintiff’s subpoena “duces tecum” (see Doc.
182), Plaintiff’s requests are problematic insofar as Plaintiff is not requesting particularized
documents, such as medical records; rather, Plaintiff is requesting certain opinions from these
medical providers. Rule 45 does not contemplate the use of a subpoena commanding production
of documents for such a purpose. The Court recognizes, however, that Plaintiff’s amended
subpoena request seeks the in-person appearance of Drs. Saini and Miller, presumably for
testimony. These subpoenas are also problematic insofar as Plaintiff has not set forth a place or
time for such an appearance; thus, the Court is unable to discern whether such testimony would
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comply with the dictates of Rule 45(c). Further, the Court is mindful that Plaintiff’s incarceration
makes the possibility of a live, in-person deposition unwieldly and quite unlikely. Insofar as
Plaintiff’s subpoena may be construed as a request for deposition by written questions under Rule
31, Plaintiff has failed to demonstrate his compliance with the required procedures. Rule 31
requires a party seeking deposition by written question to arrange and pay for an officer (usually
a stenographer or court reporter) to meet with deponents, take their testimony, and prepare and
certify their depositions. See Fed. R. Civ. P. 31(b). The Court will not pay these costs. See
Lindell v. McCallum, 352 F.3d 1007, 1111 (7th Cir. 2003) (a pro se plaintiff proceeding in forma
pauperis “has no constitutional entitlement to subsidy … to prosecute a civil suit; like any other
civil litigant, he must decide which of his legal actions is important enough to fund” (internal
citations omitted)); Werner v. Hamblin, No. 12-cv-0096, 2013 WL 788076, at *1 (E.D. Wis. Mar.
1, 2013) (the cost of a court reporter for a Rule 31 deposition “is not an expense that the court
would pay” (citing McNeil v. Lowney, 831 F.3d 1368, 1373 (7th Cir. 1987))).
Because it is not apparent that Plaintiff has, or is willing and able, to make such
arrangements to complete a live or written deposition of Drs. Saini or Miller, his Motions for
Subpoena are DENIED.
Motion for Sanctions (Doc. 192); Supplement to Motion for Sanctions (Doc. 199); Motion to
Withdraw Docs. 198, 199 (Doc. 207)
Plaintiff’s filings regarding his request for sanctions against Defendants are not clear. In
his initial motion for sanctions (Doc. 192), Plaintiff asserts Defendants Lashbrook and Hunter
failed to provide their interrogatory responses by March 24, 2023, and Defendants Engelage and
Myers did not respond to his requests to admit also due by this date. Plaintiff later clarifies in his
motion that Defendants Engelage and Myers filed their response to his requests to admit, but
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complains that these responses were not sent directly to Plaintiff. Plaintiff also complains that
Defendant Baldwin sought additional time to respond to his interrogatories and Defendants also
sent him a notice of deposition during this time.
In his supplement to his motion for sanctions (Doc. 199), Plaintiff asserts counsel directed
a legal mail officer to remove the postmark from an envelope that contained responses to Plaintiff’s
requests to admit and interrogatories that Plaintiff asserts he “should have received earlier.” In
his motion to withdraw Docs. 198 and 199, Plaintiff indicates he seeks to withdraw such filings
because the “discovery documents appear to be timely mailed by prison officials.” Plaintiff seeks
to withdraw Doc. 199 because “it was a moot matter when finally filed.” Plaintiff does not
specifically mention withdrawal of his motion for sanctions at Doc. 182.
Based on these filings, it is not clear whether Plaintiff seeks to withdraw his initial motion
for sanctions as well as his supplement. Because at this juncture Plaintiff’s request for sanctions
is unclear, the Court DENIES the motion without prejudice. Plaintiff is granted leave to refile
his motion, provided he clearly states what conduct remains at issue and why he seeks sanctions
for said conduct. Plaintiff’s Motion to Withdraw is GRANTED as to Doc. 199. Plaintiff’s
request to withdraw Doc. 198 is addressed below.
Motion Ordering Originals be Attached to Deposition Pending Final Disposition of the Case
(Doc. 193)
Plaintiff asks that the Court order that all documents produced for inspection during his
May 25, 2023 deposition be marked for identification with the originals attached to the deposition
pending final disposition. Plaintiff’s request is DENIED. The Court finds the management of
depositions in the way sought by Plaintiff is not an efficient use of time and resources. The parties
are free to make agreements amongst themselves pertaining to documents addressed during
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depositions.
Motion to Extend Discovery Deadline (Doc. 198) and Motion to Withdraw Docs. 198, 199 (Doc.
207)
In his motion to extend the discovery deadline, Plaintiff asks that discovery remain open
until July 15, 2023, citing issues with the warden destroying certain mail to thwart his litigation,
his efforts to complete discovery in this case, and delays caused by Defendants in responding to
discovery in this case.
Plaintiff, however, filed a motion asking to withdraw his motion to extend discovery on
May 1, 2023. Plaintiff’s motion to withdraw(Doc. 207) is GRANTED and his motion to extend
the discovery deadline (Doc. 198) is WITHDRAWN.
Motion for Permission to File an Interlocutory Appeal and Proceed without Prepaying Fees
(Doc. 200)
Plaintiff asks the Court for permission to file an interlocutory appeal concerning the Court’s
Order at Doc. 195 denying Plaintiff’s motion to compel and motion for sanctions. The Court
denied Plaintiff’s motions insofar as they related to discovery responses that had been received by
Plaintiff, albeit with the possibility they were received a few days delayed. Plaintiff asserts the
Court abused its discretion in making its decision. Plaintiff also asserts he is unable to pay the
$505.00 appellate filing fee.
28 U.S.C. § 1292(b) “permits a court of appeals to review an interlocutory order if the
district court certifies that particular issues meet the statutory requirements.” Lu Junhong v.
Boeing Co., 792 F.3d 805, 811 (7th Cir. 2015) (citing Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199, 205 (1996)). Section 1292(b) sets forth the following statutory criteria: “there must
be a question of law, it must be controlling, it must be contestable, and its resolution must promise
to speed up the litigation.” Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 675 (7th
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Cir. 2000) (emphasis in original).
Plaintiff’s request for an interlocutory appeal does not meet these requirements. The order
on Plaintiff’s motion to compel and motion for sanctions did not involve pure questions of law,
but rather, concern factual and contextual issues. Further, the issues are not controlling in the
sense they would eliminate claims from the case or otherwise control the litigation. Plaintiff has
not set forth any binding cases to demonstrate the issues here are contestable or that there is a
“substantial likelihood” the undersigned’s rulings would be overturned on appeal. Finally, there
is no indication an interlocutory appeal would streamline or otherwise speed up the litigation. See
Hurt v. Vantlin, 3:14-cv-00092-JMS-MPB, 2020 WL 1310443 (S.D. Ind. Feb. 6, 2020).
For these reasons, Plaintiff’s Motion for Permission to File an Interlocutory Appeal and
Proceed without Prepaying Fees (Doc. 200) is DENIED.
Motion and Affidavit to Proceed in District Court without Prepaying Fees or Costs (Doc. 201)
It is not clear whether Plaintiff seeks to proceed on this matter without prepaying fees or
costs, or whether he seeks to proceed in forma pauperis on appeal. Plaintiff’s motion at hand was
filed on the same date as his motion for permission to file an interlocutory appeal, so the Court
finds it likely Plaintiff intended a motion for leave to appeal in forma pauperis. Because the Court
denied Plaintiff permission to file an interlocutory appeal, his request to proceed on appeal in
forma pauperis is MOOT. Insofar as Plaintiff seeks leave to proceed in this case in forma
pauperis, his request is also MOOT as he has already paid the filing fee in full.
Motion to Subpoena Menard Tactical Commander Jerry Witthoft (Doc. 204) and Motion to
Subpoena Duces Tecum Jerry Witthoft (Doc. 205)
In these motions, Plaintiff asks the Court to subpoena Jerry Whitthoft to provide both
documents (Doc. 204) and testimony (Doc. 205). Plaintiff asserts Witthoft was the Menard
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Tactical Commander that participated in the planning and execution of the August 4, 2017 special
operation that resulted in Plaintiff’s injury.
Plaintiff asserts Witthoft created documents
identifying staff members that participated in the August 4, 2017 and their role in said operation.
Plaintiff’s requests for the Court to issue subpoenas directed to Jerry Witthoft are
DENIED.
Plaintiff has not provided any subpoenas for review.
As such, the Clerk is
DIRECTED to provide Plaintiff with two subpoena forms (AO88B), blank and unsigned.
Plaintiff shall complete the form and submit it to the Court for review, including the documents
and/or testimony sought by subpoena. Plaintiff shall take appropriate steps to avoid imposing
undue burden or expense on a person subject to the subpoena. Plaintiff is ADVISED to review
Rule 45 of the Federal Rules of Civil Procedure. Plaintiff is further ADVISED that if the Court
determines that the subpoena seeks relevant information and may be issued, the party seeking the
subpoena is responsible for paying the associated costs - even if the court has found that the party
is indigent. See Armstead v. MacMillian, 58 F.App’x 210, 213 (7th Cir. 2003) (unpublished)
(“District courts do not have statutory authority to waive witness fees for indigent civil litigants
…”). As mentioned above with respect to Plaintiff’s other subpoena requests, if Plaintiff seeks
deposition testimony, he must demonstrate that he has made arrangements, and is willing and able
to pay for the same.
IT IS SO ORDERED.
DATED: May 12, 2023
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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