Long v. Kaplan

Filing 157

ORDER SETTING FINAL BRIEFING SCHEDULE FOR SUMMARY JUDGMENT MOTIONS signed by Judge Pamela Pepper on 6/20/2017. The court ORDERS: defendant to file reply brief in support of 83 summary judgment motion by end of day 7/7/2017; defendant's reply b rief shall be final pleading relating to 59 defendant's motion for summary judgment; plaintiff shall not file any response, opposition or other pleading in response to defendant's reply brief. The court ORDERS: Defendant to file oppositio n brief to 11 plaintiff's original and 145 plaintiff's supplemental motions for summary judgment, response to 146 plaintiff's statement of stipulated material facts, and response to 147 plaintiff's statement of proposed ma terial facts by end of day 7/21/2017l; if plaintiff wishes to file reply brief, he shall do so in time for the court to receive it by end of day 8/11/2017. The court ORDERS that, unless any party files motion for extension of time to file any of the above pleadings, summary judgment briefing will be CLOSED as of end of day 8/11/2017. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
PETER J. LONG,

Case No. 14-cv-1218-pp

Plaintiff,
v.
ROMAN KAPLAN, M.D.,
Defendant.
______________________________________________________________________________
ORDER SETTING FINAL BRIEFING SCHEDULE FOR SUMMARY JUDGMENT
MOTIONS
______________________________________________________________________________
This is an order setting a final summary judgment briefing schedule. It is
necessary for the court to provide some of the procedural history of this case to
set the context for this order.
Plaintiff Peter Long is representing himself in this civil rights suit,
alleging that the defendant was deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment, and that the defendant was
negligent and committed malpractice under Wisconsin law. See Dkt. No. 3 at 2
(screening order). On January 8, 2015, the plaintiff filed a motion for summary
judgment. Dkt. No. 11. The defendant filed an opposition brief, dkt. no. 18, and
the plaintiff filed his reply, dkt. no. 25. That meant that the plaintiff’s motion
was fully briefed as of February 23, 2015.
On April 10, 2015 (before the court had ruled on the plaintiff’s motion for
summary judgment), the defendant filed a motion for summary judgment. Dkt.
No. 30. The plaintiff filed his opposition brief, dkt. no. 36, and the defendant
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filed his reply, dkt. no. 45. The defendant’s motion for summary judgment was
fully briefed as of June 25, 2015.
On August 27, 2015, while the two motions for summary judgment were
under consideration, the plaintiff filed a notice that he had been able to retain
a medical expert. Dkt. No. 47. He asked the court to stay proceedings so that
he could disclose the expert and the expert’s report. Id. In light of this, the
court denied without prejudice both the plaintiff's motion for summary
judgment and the defendant's motion for summary judgment, and set
deadlines for the parties to make expert witnesses disclosures. Dkt. No. 49. The
court told the parties that once they’d made those disclosures, they either
could elect to stand on their original summary judgment motions, or could file
new ones, by January 15, 2016. Dkt. No. 49. On January 14, 2016, the
plaintiff notified the court that he wanted to stand on his original summary
judgment motion. Dkt. No. 54.
On January 15, 2016, the defendant filed a new motion for summary
judgment. Dkt. No. 59. The plaintiff asked for additional time to file his
opposition brief, dkt. no. 72, and the court granted that request, extending the
plaintiff’s response deadline to March 18, 2016, dkt. no. 74. The court did not
receive the plaintiff’s response by the March 18, 2016 deadline.
On March 23, 2016, the court received a reply brief from the defendant—
despite the fact that the court had not received an opposition brief from the
plaintiff. Dkt. No. 82. In the reply brief, the defendant argued that the plaintiff
had not filed his opposition brief by the March 18 deadline the court had set,
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and the defendant asked the court to award summary judgment in favor of the
defendant. That same day, the court received the plaintiff’s opposition brief.
Dkt. No. 83. The plaintiff also filed a statement of “stipulated material facts”
and a statement of proposed facts, dkt. nos. 87, 88, despite the fact that he
had not filed a new motion for summary judgment (he elected to stand on his
original motion), and despite the fact that he had filed proposed findings of fact
at the time he’d filed the original motion, dkt. nos. 13, 14.
On March 24, 2016, the defendant asked for an extension of time to file
his reply brief—even though the court had received a reply brief on March 23.
Dkt. No. 91. Several days later, the defendant filed a letter, asking to withdraw
the March 23, 2016 reply brief in which he’d argued that the plaintiff hadn’t
timely filed a respond. Dkt. No. 96. The defendant asked the court to grant him
additional time to file a substantive reply to the plaintiff’s opposition brief. Id.
About a week later, the plaintiff filed a motion for leave to "supplement" his
original motion for summary judgment. Dkt. No. 92. Each party opposed the
other party’s request.
On April 1, 2016, the court issued an order dealing with several pending
motions. Dkt. No. 98. Among other things, the court allowed the defendant to
withdraw his March 23, 2016 reply brief (the one in which he’d argued that
because the plaintiff hadn’t filed an opposition brief, the court should award
summary judgment to the defendant). Id. at 11. The court denied the plaintiff’s
request to "supplement" his 2015 motion for summary judgment. Id. The court
gave the plaintiff a deadline of May 13, 2016 by which to respond to the
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defendant’s discovery demands, and indicated that it would schedule a status
conference for after the discovery deadline to talk about next steps. Id. at 1112.
The court conducted that status conference on June 10, 2016. Dkt. No.
107. During that conference, counsel for the defendant told the court that now
that the defendant had information about the plaintiff’s expert, the defendant
would need to depose that expert. Id. at 1. The court and the parties discussed
at some length the logistics of conducting such a deposition, and the court
ended up agreeing to appoint counsel to represent the plaintiff for the limited
purpose of assisting him in defending his expert’s deposition. Id. Counsel for
the defendant expressed concern about the appointment of counsel; she noted
that the defendant’s motion for summary judgment was fully briefed except for
the defendant’s reply brief, and she worried that an appointed lawyer might
seek to start the summary judgment process from scratch. Id. at 2. The court
made clear that it was appointing counsel for the sole, and limited, purpose of
assisting the plaintiff to defend his expert’s deposition, not to re-brief summary
judgment. The court instructed counsel for the defendant to notify the court
once the parties had completed the deposition of the plaintiff’s expert witness.
At that time, the court said, it would “schedule deadlines for the plaintiff to
supplement his motion for summary judgment (if he chooses to do so), and for
the defendant to file a reply to the plaintiff’s response to the defendant’s motion
for summary judgment. Id.

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Much water has passed under the bridge in the year that has followed.
The plaintiff attempted to re-start the discovery process, and filed numerous
discovery demands and motions, to which the defendant objected. The court
has ruled on all of those requests. On February 17, 2017, even though the
court had not yet received notice that the parties had completed the expert’s
deposition, and even though the court had not set a deadline for the plaintiff to
supplement his motion for summary judgment, the plaintiff filed a document
entitled “Plaintiff’s Supplemental Memorandum of Law In Support of Plaintiff’s
Motion for Summary Judgment.” Dkt. No. 145. He also filed yet a third set of
“stipulated material facts” and proposed findings of fact. Dkt. Nos. 146, 147.
The defendant appears to have construed this filing as a “renewed”
motion for summary judgment (even though the plaintiff filed it before the
parties completed the expert’s deposition, and even though the court had not
set a deadline for the plaintiff to file such a motion), and asked the court to give
him additional time to respond. Dkt. No. 150. The plaintiff objected, arguing
that the defendant did not timely seek to depose his expert. Dkt. No. 152. (In
that objection, the plaintiff indicated that he’d filed his renewed motion for
summary judgment in February 2017 “pursuant to the Court’s orders and
directives.” Id. at 2. It is not clear to which orders and directives the plaintiff
refers.) The defendant replied that he had promptly scheduled the expert’s
deposition—within ninety days of the date that the plaintiff’s appointed counsel
came on board. Dkt. No. 153 at 1-2. The defendant asked the court to give him
a deadline of thirty days from the date the expert’s deposition was completed to
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respond to the plaintiff’s renewed motion for summary judgment. Id. at 2. The
court granted the defendant’s motion, and again indicated that it would issue a
briefing schedule after it received notice that the parties had completed the
expert’s deposition and the court reporter had finalized the transcript. Dkt. No.
155.
On June 13, 2017, the court received a notice from the defendants that
the parties had completed the deposition of the expert, and that the transcript
was final. Dkt. No. 156. So—it is time for the parties to conclude their
summary judgment briefing. The defendant’s motion for summary judgment is
fully briefed except for the defendant’s reply brief. The plaintiff has filed a
renewed (or supplemental) motion for summary judgment; the defendant needs
to file a brief in opposition to that motion, after which the plaintiff may file a
reply.
The court notes that the plaintiff told the court on January 14, 2016 that
he wished to stand on his original motion for summary judgment. Dkt. No. 54.
He has filed the original motion for summary judgment and a supplement (dkt.
nos. 11 and 145), three sets of “stipulated material” facts (dkt. nos. 13, 88 and
146), and three sets of proposed findings of fact (dkt. nos. 14, 87 and 147). In
the supplemental motion for summary judgment, the plaintiff reiterated that he
stands on his original motion for summary judgment and supporting
documents. Dkt. No. 145 at 2. He indicates that he “is allowed” to supplement
that original motion with the supplemental memorandum of law he filed in
February 2017 (what the defense characterizes as his “renewed” motion for
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summary judgment), as well as the new sets of exhibits and proposed findings
of fact he filed in February 2017. Id. In a footnote, he says that the statement
of “stipulated material” facts and statement of proposed findings of fact that he
filed in February 2017 “replace all previous versions.” Id. at 2, n.1. Given that,
the court will require the defendant to respond to only four (4) of the many
documents the plaintiff has filed: his original motion for summary judgment
and any attached exhibits (dkt. no. 11); the supplemental (or renewed) motion
for summary judgment (dkt. no. 145); the February 17, 2017 statement of
“stipulated material facts” (dkt. no. 146), and the February 17, 2017 statement
of proposed material facts (dkt. no. 147). The court will not require the
defendant to comb through all three sets of “stipulated material facts” and
statements of proposed material facts, or to compare and contrast those
documents.
The court also advises the parties that once they have filed the pleadings
the court describes below, summary judgment briefing will be closed. The court
will not accept any further summary judgment motions, briefs, exhibits or
related documents. At that point, the court will take the motions under
advisement, in preparation for issuing its decision. The court cannot predict
how long it will take to issue that decision, but there will be no need for either
party to file anything further once the court takes the summary judgment
pleadings under advisement.
The court ORDERS the following:
Defendant’s January 15, 2017 Motion for Summary Judgment (Dkt. No.
59)
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The defendant shall file his reply brief to the plaintiff’s opposition brief to
the defendant’s motion for summary judgment (Dkt. No. 83) by the end of the
day on Friday, July 7, 2017. The court ORDERS that the defendant’s reply
brief shall be the final pleading relating to the defendant’s January 15, 2017
motion for summary judgment (dkt. no. 59). The court ORDERS that the
plaintiff shall not file any response, opposition or other pleading in response to
the defendant’s reply brief.
Plaintiff’s February 17, 2017 Supplemental Memorandum of Law In
Support of Plaintiff’s Motion for Summary Judgment (Dkt. No. 145),
Plaintiff’s Statement of Stipulated Material Facts (Dkt. No. 146), and
Plaintiff’s Statement of Proposed Material Facts (Dkt. No. 147)
The court ORDERS that the defendant shall file his opposition brief to
the plaintiff’s original (dkt. no. 11) and supplemental (dkt. no. 145) motions for
summary judgment, response to the plaintiff’s statement of stipulated material
facts (dkt. no. 146),1 and response to plaintiff’s statement of proposed material
facts (dkt. no. 147) by the end of the day on Friday, July 21, 2017.
The court ORDERS that if the plaintiff wishes to file a reply brief, he
shall do so in time for the court to receive it by the end of the day on Friday,
August 11, 2017.
The plaintiff has filed three sets of what he refers to as “stipulated” material
facts. Dkt. Nos. 13, 88 and 146. The court does not know what the plaintiff
means by “stipulated” facts. A “stipulation” is an agreement between the
parties. Normally, the court would assume that “stipulated” facts are facts that
both sides have agreed are true; a set of “stipulated” facts would be signed by
both parties. The defendant’s counsel did not sign any of the three sets of
“stipulated” facts, and thus the court assumes that the defendant may wish to
respond to the most recent set of those facts, despite the plaintiff labeling them
as “stipulated.”
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The court ORDERS that, unless any party files a motion for an extension
of time to file any of the above pleadings, summary judgment briefing will be
CLOSED as of the end of the day on Friday, August 11, 2017.
Dated in Milwaukee, Wisconsin this 20th day of June, 2017.
BY THE COURT:

______________________________
HON. PAMELA PEPPER
United States District Judge

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