Wilke, Kevin v. Nurse that worked June 27, 2014 - July 2, 2014, name unknown et al

Filing 98

ORDER signed by Judge Pamela Pepper on 6/6/2016 Plaintiff's Second Motion for Reconsideration; and GRANTING 81 Defendants' Motion for Extension of Time. The court ORDERS that the motion for summary judgment filed on 5/9/2016 was timely filed. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KEVIN L. WILKE,
Plaintiff,
v.

Case No. 14-cv-1144-pp

TANYA SHAW,
DR. TEODORA ROMANA,
LIETUENANT HEATHER WITTIG,
SHERIFF JEFFREY NETT,
CORPORAL PAUL HANNEMAN,
CORRECTIONAL HEALTHCARE COMPANIES, INC.,
BONNIE ALT, and
SANDRA GEISTLER,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S FIRST MOTION FOR RECONSIDERATION
(DKT. NO. 78), DENYING PLAINTIFF’S SECOND MOTION FOR
RECONSIDERATION (DKT. NO. 79), AND GRANTING DEFENDANTS’
MOTION FOR EXTENSION OF TIME (DKT. NO. 81)
______________________________________________________________________________
The court held a telephonic status conference on December 22, 2016.
Following that hearing, the court entered a minute order and a separate written
order, both of which resolved motions pending in this case. Dkt. Nos. 76, 77.
On January 15, 2016, the plaintiff filed two motions for reconsideration. Dkt.
Nos. 78, 79.
Additionally, one group of defendants filed a motion for a brief extension
of time to file their motion for summary judgment. Dkt. No. 81. Although
arguably the need to rule on the motion now is moot, because those defendants
have filed their motion, the court will grant the motion.
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I.

Plaintiff’s First Motion for Reconsideration
In his first motion for reconsideration, the plaintiff asks the court to

reconsider its denial of his requests for injunctive relief. Dkt. No. 78. At the
time the plaintiff made those requests, he was in the Marquette County Jail,
and was asking the court to require that facility to provide him access to
certain legal materials. Dkt. No. 77 at 2. This court denied those requests
because, by the time the court ruled on the, the plaintiff had been released
from the Marquette County Jail. When a prisoner seeks injunctive relief for a
condition specific to a particular institution, and then is transferred out of that
institution, his request that the court order that institution to do something
becomes moot. Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004); Higgason v.
Farley, 83 F.3d 807, 811 (7th Cir. 1996).
The plaintiff now argues that his requests for injunctive relief were not
moot, because when he was in the Marquette County Jail, he was in the middle
of prosecuting an appeal in the state appellate court, and the Marquette
County Jail denied him access to that court. Dkt. No. 78 at 1. Even if that is
true, the court cannot go back in time and order the Marquette County Jail to
give the plaintiff access to the Court of Appeals. There is nothing the court can
order the Marquette County Jail to do that would remedy the fact that months
ago, the jail did not give him access to the Court of Appeals. There is nothing
this court can do in this case regarding the plaintiff’s inability to appeal.

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It appears to the court from reading the plaintiff’s motion that what he
really wants is to bring a claim against the Marquette County Jail for
interfering with his ability to appeal his conviction. If that is what the plaintiff
wants to do, he will need to file a separate lawsuit to do it. This case is about
the medical care the plaintiff received after a fight at the jail. The Seventh
Circuit Court of Appeals has held in George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007) that “[u]nrelated claims against different defendants belong in
different suits.”
Federal Rule of Civil Procedure 54(b) allows any order adjudicating fewer
than all the claims to be revised at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the parties.
Motions to reconsider (or more formally, to revise) an order under Rule 54(b)
are judged by largely the same standards as motions to alter or amend a
judgment under Rule 59(e): “to correct manifest errors of law or fact or to
present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co.,
827 F.2d 246, 251 (7th Cir.1987) (quoting Keene Corp. v. Int'l Fid. Ins. Co., 561
F.Supp. 656, 665-66 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984) (citation
and footnote omitted)), amended by, 835 F.2d 710 (7th Cir.1987); compare
Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996) (providing nearly
identical standard for motion under Rule 59(e)). The court made no manifest
error of law or fact when it denied the plaintiff’s requests for injunctive relief.

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Nor has the plaintiff presented any newly discovery evidence. The court will
deny this motion.
II.

Plaintiff’s Second Motion for Reconsideration
In his second motion to reconsider, the plaintiff asks the court to change

its decision directing the plaintiff to answer an interrogatory that requests a list
of all the jails and prisons where the plaintiff has been incarcerated. Dkt. No.
79. The plaintiff argues that the court has no grounds to order him to provide
this information, and that the defendants want it only to “bash” the plaintiff’s
reputation to the court.
These are the same relevance arguments the plaintiff made in writing
and during the telephonic status conference. The court explained in detail in
the minute order that all the court had was deciding was whether the
defendants could see the information, not whether that information could be
shown to a jury. Dkt. No. 76 at 2-3. In other words, the court explained to the
defendant that while the discovery rules allowed the defendants to obtain this
information, the plaintiff needed to trust that the court would not allow them to
use the information just to make him look bad in front of a jury, if the case
went to trial. Id. at 3. The court also limited the required disclosure to
incarceration in adult institutions; the plaintiff does not have to turn over the
information regarding any juvenile facilities in which he may have been
detained. Id. The court also noted that the information could be made subject
to a protective order; that is, marked “for attorneys’ eyes only.” Id.
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In his motion, the plaintiff argues that he can’t think of any reason the
defendants would want this information, other than to attack his reputation.
Dkt. No. 79 at 2. He argues that any information about what facilities he’s been
in—particularly while a pretrial detainee—is not relevant. Id. He argues that
what the defendants should have done was ask him whether he’d ever broken
any bones in his hand before in his life. Id. at 3.
The court ruled that the plaintiff had to provide this information because
it may well be relevant. The defendants cannot obtain the information they
need simply by asking the defendant whether he ever has broken bones in his
hand. First, the defendant might not remember other injuries, while
institutions where he has been would keep records. Second, there could be
other issues which might impact the plaintiff’s claims—did he ever have
bruises or sprains to that hand? Did he ever complain, in other facilities, of
pain or weakness in that hand? Did the plaintiff ever injure that hand, in any
way, while in another facility? There are many other reasons that information
about where the plaintiff has been incarcerated in the past five years could be
relevant to his claim in this case. The discovery rules allow parties to obtain
any evidence “that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1). Where the defendant has been incarcerated over the past five years is
relevant, and while the court understands that the plaintiff is worried about
providing this information, and does not want to provide this information, and
is concerned that the defendants will use the information to make the plaintiff
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look bad, the court has ruled that he must provide the information to the
defendants.
The court did not make a manifest error of law or fact in ordering that
the plaintiff had to answer Interrogatory No. 7, and the plaintiff has not
presented any newly discovered evidence. See Rothwell, 827 F.2d at 251. The
court will deny the plaintiff’s motion. If the plaintiff has not already done so, he
must answer this interrogatory within ten (10) days of this order.
III.

Medical Defendants’ Motion for Extension of Time (Dkt. No. 81)
The deadline the court set for the parties to file dispositive motions was

April 25, 2016. Dkt. No. 77. On April 15, 2016, the medical defendants filed a
motion for an extension of that deadline to May 9, 2016, due to scheduling
conflicts with counsel’s case load. Dkt. No. 81. The court did not rule on the
motion prior to the expiration of the original deadline, or the by the deadline
the medical defendants had requested. Nonetheless, the medical defendants
filed their motion by the date they proposed—May 9, 2016. Dkt. No. 91. And
the plaintiff already has filed his brief in opposition. Dkt. No. 97. The court will
grant the motion for an extension of time, nunc pro tunc to April 25, 2016.
III.

Order
The court DENIES the plaintiff’s motion for reconsideration. Dkt. No. 78.

The court also DENIES the plaintiff’s second motion for reconsideration. Dkt.
No. 79. The court ORDERS that the plaintiff must answer Interrogatory No. 7
within ten (10) days of the date of this order.
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The court GRANTS the medical defendants’ motion for and extension of
time, Dkt. No. 81, and ORDERS that the motion for summary judgment filed
May 9, 2016 was timely filed.
Dated in Milwaukee, Wisconsin this 6th day of June, 2016.

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