Harper v. Giese et al

Filing 145

ORDER granting 81 Motion for Summary Judgment; granting 86 Motion for Summary Judgment; denying 144 Motion to Appoint Counsel. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KEVIN HARPER,
Plaintiff,
v.

Case No. 18-C-753

ERIC STEFONEK, et al.,
Defendants.

DECISION AND ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT

In this pro se civil rights action, Plaintiff Kevin Harper alleges that several correctional
officers at the Waukesha County Jail used excessive force against him when returning him to his
cell, another correctional officer failed to intervene to prevent the others’ use of excessive force, and
correctional officers and a jail nurse failed to provide him adequate medical treatment or
accommodate his needs after this incident and after a later fall in the shower. Plaintiff filed this
action for damages under 42 U.S.C.§ 1983 against the correctional officers and nurse. The court
has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Currently before the court are the
defendants’ motions for summary judgment and Plaintiff’s motion to recruit counsel. For the
following reasons, the defendants’ motions for summary judgment will be granted, Plaintiff’s
motion to recruit counsel will be denied, and the case dismissed.
BACKGROUND
On November 13, 2017, Plaintiff was booked at the Waukesha County Jail on a
probation hold. At the time of the alleged events, Plaintiff was subject to Inmate Management

Protocols because of his history of disciplinary infractions. These included the following
protocols:
****Shower Protocol****
D/T failure to lock in after showering, inmate will be escorted to a secure shower
handcuffed behind his back with a second officer present.
****Inhaler Issuance Protocol****
Inmate will be restrained behind the back, also utilizing a tether. The tether will
be held tightly and the cell door will be opened. With one officer maintaining
control of the tether and at least one officer maintaining physical control of
subject’s arm, medical staff will maintain control of the inhaler and allow the
inmate to take the required dosage puffs of the inhaler. Inmate will not dictate
which staff members maintain physical control of him or which medical staff will
issue the inhaler’s use.
Defs.’ Prop. Findings of Fact, Dkt No. 110 at 4.
A.

March 6, 2018
At approximately 4:10 p.m. on March 6, 2018, Lieutenant Christopher Bischoff was

assigned as a Pod 2 officer and was serving dinner in the pod. Plaintiff was on a bag meal
protocol, which meant that he was to step to the back of the cell and kneel facing the rear of the
cell away from the door when his meal was delivered. Bischoff stood at the door to Plaintiff’s
cell and directed him to step to the back of his cell and kneel facing the wall. Plaintiff did not
comply but instead began debating the protocol with Bischoff. Bischoff again directed Plaintiff
to step back and kneel, but he again refused to comply. Under the protocol, failure to follow the
directives of the protocol is considered a refusal of the meal. Bischoff proceeded to distribute
meals to the other inmates in Unit A and then returned to Plaintiff’s cell. When Plaintiff
persisted in debating the protocol, Bischoff exited the unit.

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Shortly thereafter, Plaintiff hit his intercom stating he was having an asthma attack.
Medical backup was called immediately via radio. Lieutenant Erik Stefonek and Bischoff;
Officers Dominic Cattani, Christopher Domurat, Greg Miller, and Troy Holzhueter; and Nurse
Beal responded to the call and went to Plaintiff’s cell. Holzhueter stood to the right of
Plaintiff’s cell, Miller stood directly in front, Bischoff stood off to the left, and Domurat stood a
few feet behind Bischoff. Stefonek stood at a distance observing. As shown in a video
recording of the incident (Dkt. No. 115), Plaintiff initially complied with the protocol and
presented his hands behind his back so the handcuffs could be applied through his cell’s tray
chute with a tether attached. Once the handcuffs were applied, Plaintiff’s cell door was opened
with the tether held tight to keep Plaintiff’s back against the door as it opened so he could be
safely assessed by the nurse. During this assessment, Plaintiff would not stand up straight,
claiming he was too weak because he had not been fed. Bischoff used an escort hold to support
Plaintiff by the arm.
Once the nurse completed her assessment, Plaintiff was ordered to go back into his cell.
Plaintiff denies that any such order was given at any point. Plaintiff resisted the defendants’
attempts to get Plaintiff back into his cell and to close his door. Bischoff continued to use an
escort hold on Plaintiff to assist him getting back into his cell. Holzhueter, who was holding the
tether attached to Plaintiff’s wrist restraints, held tension on the tether to prevent his hands from
moving. Holzhueter also placed his left shoulder and foot against the door to prevent it from
opening any farther.
In response to Plaintiff’s continued resistance and refusal to comply with orders,
Stefonek ordered that focused knee strikes be used against Plaintiff in order to gain control and
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compliance, and to secure him back into his cell. Plaintiff denies resisting the officers’ attempts
to get him back into his cell but his efforts to resist are clearly visible on the video recording of
the incident. Bischoff, who was directly facing Plaintiff, delivered approximately three focused
knee strikes with his left leg to Plaintiff’s left upper outside thigh. Domurat states that he also
attempted to deliver a knee strike but hit Plaintiff’s cell door. Plaintiff states that Domurat
struck him and not the door. While Bischoff delivered the knee strikes, Holzhueter continued to
hold the tether and apply counter weight against Plaintiff’s cell door. Neither Holzhueter nor
Miller delivered any knee strikes. After the knee strikes were delivered, Cattani joined the
officers’ attempts to close Plaintiff’s cell door. Plaintiff’s cell door was then pushed closed.
Right before the door was closed, Bischoff’s hand got trapped and was slammed in the cell door,
injuring it.
After Plaintiff’s cell door was closed, Holzhueter applied counter resistance to the tether
to put Plaintiff’s hands in a position where his wrist restraints could be removed. At some point,
Miller took control of the tether, Holzhueter held Plaintiff’s left hand, Cattani held Plaintiff’s
right hand, and his hand restraints were removed. Cattani, Holzhueter, Domurat, Stefonek, and
Bischoff did not observe any injuries to Plaintiff.
Following Plaintiff’s placement back in his cell, Nurse Link, accompanied by several
correctional officers, assessed his injuries. Link’s progress notes from her examination indicate
that Plaintiff had a small laceration/abrasion on his right wrist the size of a pea that Link
instructed him to wash with soap and water. Link also informed Plaintiff that if he has any other
injuries that he should submit a written medical request. Plaintiff claims that when Link

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examined him there was a lot of blood, that Link observed him limping, and that she did not tell
him to submit written medical requests for any other injuries that he had.
Plaintiff submitted two written medical request forms over the course of the next two
days complaining of back, leg, and arm pain stemming from the March 6 altercation. A nurse
responded to the first as follows: “Your arms were assessed on the date of your alleged injury.
There are no abnormalities noted. Please comply with security protocols, or you will be unable
to be assessed. This is for the safety of all staff, as you have become a severe security risk.”
Dkt. No. 90-2 at 6. The nurse’s response to his other request was “[u]nable to assess due to not
cooperating with security protocol.” Id. at 7. Link was not involved in responding to either of
Plaintiff’s medical requests. After an investigation was conducted by Deputy Jeremy Stilling of
the events that took place on March 6, Plaintiff was charged with assault by prisoner,
resisting/obstructing, and disorderly conduct.
B.

March 10, 2018
At around 8:30 p.m. on March 10, 2018, Plaintiff was informed that it was his turn to

shower. In response to Plaintiff’s statements that he required a wheelchair, corrections staff
contacted the medical department, which informed them Plaintiff was not on a wheelchair
protocol and did not need it or other accommodations such as a shower chair. Various officers
also observed Plaintiff walking around without difficulty. Defendant Officer Richard Diaz and
Buboltz secured Plaintiff in restraints and escorted him to the shower. At some point Plaintiff
fell in the non-shower area of the secured shower. A medical back-up call was made, and
Defendant Lieutenant Nathan Adams, Buboltz, Compton, and Link, along with several other

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officers, responded to the shower area. Buboltz observed Plaintiff and did not see any specific
injuries to Plaintiff that required immediate medical attention.
Adams states that he attempted to get Plaintiff to “cuff up” at the door to the secured
shower but Plaintiff refused. Plaintiff states that his injuries prevented him from going to the
door and that he did not refuse any commands. Because Plaintiff was not able to be placed in
restraints per the protocol, Link was not permitted to go into the shower area. Link observed
Plaintiff through a small window and did not notice any signs of deformities or trauma. Based
on Link’s statement that Plaintiff was not injured, and their own observations that did not reveal
any clear signs of injury, Adams, Buboltz, Compton, Link, and other officers left the area while
two officers continued to monitor Plaintiff. Plaintiff asserts that Link did not observe him and
that Adams, Buboltz, Compton, and Link all ignored his complaints regarding his injuries and
left him there on the floor.
A plan was formulated to enter the secure shower area and apply restraints to Plaintiff
which officers then executed. Buboltz assisted other officers in transporting Plaintiff back to his
cell in a wheelchair.
LEGAL STANDARD
Summary judgment should be granted when the moving party shows that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). In other words, the time and expense of the parties and the court
should not be wasted on a trial when there are no material facts in dispute, one party is entitled
to judgment on those facts, and thus there is nothing to try. In deciding a motion for summary
judgment, all reasonable inferences are construed in favor of the nonmoving party. Foley v. City
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of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for summary
judgment must “submit evidentiary materials that set forth specific facts showing that there is a
genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted
source and internal quotation marks omitted). “The nonmoving party must do more than simply
show that there is some metaphysical doubt as to the material facts.” Id. “[A] ‘metaphysical
doubt’ regarding the existence of a genuine fact issue is not enough to stave off summary
judgment, and ‘the nonmovant fails to demonstrate a genuine issue for trial where the record
taken as a whole could not lead a rational trier of fact to find for the non moving party.” Outlaw
v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (quoting Logan v. Commercial Union Ins. Co., 96
F.3d 971, 978 (7th Cir. 1996)). Summary judgment is properly entered against a party “who
fails to make a showing sufficient to establish the existence of an element essential to the party’s
case, and on which that party will bear the burden of proof at trial.” Parent v. Home Depot
U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotation marks omitted) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
ANALYSIS
In its screening order, the court allowed Plaintiff to proceed on the following claims: 1)
excessive force against Bischoff, Domurat, Miller, Holzhueter, and Cattani; 2) failure to protect
against Stefonek; 3) deliberate indifference against Buboltz, Compton, and Link for failure to
provide medical care; and 4) deliberate indifference against Buboltz and Diaz for failure to
accommodate.

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A.

Excessive Force Claims Against Bischoff, Domurat, Miller, Holzhueter, and Cattani
At all times relevant to this lawsuit, Plaintiff was incarcerated pursuant to a probation

hold and was facing a charge of violating Wis. Stat. § 961.41(1)(cm)1g and was awaiting trial.
There is no indication in the record that at the time of the alleged events Plaintiff’s probation
had been revoked, and the defendants assert that Plaintiff was a pre-trial detainee at the time the
alleged events occurred. Consequently, his claim arises under the Fourteenth Amendment. See
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015).
“[A] pretrial detainee must show . . . that the force purposely or knowingly used against
him was objectively unreasonable.” Id. This standard is not to be applied mechanically, and
“turns on the ‘facts and circumstances of each particular case.’” Id. (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). “A court must make this determination from the perspective of a
reasonable officer on the scene, including what the officer knew at the time, not with the 20/20
vision of hindsight.” Id. “A court must also account for the ‘legitimate interests that stem from
[the government’s] need to manage the facility in which the individual is detained,’
appropriately deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are
needed to preserve internal order and discipline and to maintain institutional security.’” Id.
(quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)). The following considerations, though not
an exhaustive list, bear on the court’s determination regarding the reasonableness of the force
used:
the relationship between the need for the use of force and the amount of force
used; the extent of the plaintiff’s injury; any effort made by the officer to temper
or to limit the amount of force; the severity of the security problem at issue; the

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threat reasonably perceived by the officer; and whether the plaintiff was actively
resisting.
Id.
Here, the officers’ use of force against Plaintiff was not objectively unreasonable given
his resistance, the need to move Plaintiff back into his cell, the minimal amount of force used
against Plaintiff, and the lack of serious injuries as a result of the force used. Although Plaintiff
asserts that he was not resisting and that the defendants never ordered him to get back in his cell,
“[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purpose of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007). Where a video recording exists, and “[t]here are no allegations or indications that
this videotape was doctored or altered in any way, nor any contention that what it depicts differs
from what actually happened,” as is the case here, a court must view “the facts in the light
depicted by the videotape.” Id. at 378–81. The video evidence clearly shows Plaintiff applying
dead weight tactics, planting his feet on the ground, and generally actively resisting the officers’
attempts to close his cell door. In truth, it appears that even Plaintiff’s claim that he was in need
of medical attention was simply a hoax used to retaliate against Bischoff for refusing to deliver
Plaintiff his meal when he refused to comply with the protocol. The video evidence shows
clearly that the forced used by the officers in their attempts to close his prison cell door was
reasonable.
Regarding the use of knee strikes by Bischoff and possibly Domurat, they were limited in
number, done for a valid purpose, justified based on Plaintiff’s resistance to being placed back

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in his cell, and ceased the moment Plaintiff was secure. An officer’s use of physical force
against an inmate who is disobeying orders in order to maintain order is not inherently
unreasonable. See Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012) (no excessive force
where the officer “did not use any force until [the inmate] disobeyed a command that was
designed to maintain order within the prison”); Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir.
1984) (“If it is an order that requires action by the institution, and the inmate cannot be
persuaded to obey the order, some means must be used to compel compliance, such as . . .
physical force.” ).
Plaintiff’s contention that Bischoff’s escort hold on Plaintiff was excessive is also
unfounded as there is no indication in the video that Bischoff did anything besides support
Plaintiff against the door with the hold. Further, “‘[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional
rights.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973)).
Finally, as will be discussed later, Plaintiff did not suffer any serious injuries as a result
of this altercation. Although Plaintiff claims otherwise, the objective medical evidence, both
from March 6, 2018, and from subsequent examinations, shows no indication that Plaintiff
suffered any serious injuries as a result of the officers’ use of force. Consequently, the court
holds that the officers’ use of force to get Plaintiff back in his cell on March 6, 2018, was
reasonable and did not violate Plaintiff’s constitutional rights.

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B.

Failure to Protect Claim Against Stefonek
Plaintiff’s claim against Stefonek for failure to intervene and protect him against the

other officers’ use of excessive force fails because the officers’ use of force was not excessive.
Liability under § 1983 for another officer’s excessive use of force only applies when the force is
excessive. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (“An officer who is present and
fails to intervene to prevent other law enforcement officers from infringing the constitutional
rights of citizens is liable under § 1983 if that officer had reason to know: (1) that excessive
force was being used . . . and the officer had a realistic opportunity to intervene to prevent the
harm from occurring.” (emphasis added)). Because the officers’ use of force against Plaintiff
was not excessive, Stefonek’s alleged inaction is not actionable under § 1983.
C.

Failure to Provide Medical Care Claims Against Buboltz, Compton, and Link
Plaintiff asserts that Link failed to provide medical care to him on March 6, 2018, after

he was forcefully placed back in his cell, and on March 10, 2018, after he fell in the shower area.
Plaintiff also asserts that Buboltz and Compton also failed to provide him with medical care on
March 10, 2018, after his fall.
1.

Link

As Plaintiff was a pre-trial detainee, his claims arise under the Fourteenth Amendment.
Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Until recently, it was
inconsequential whether the claims arose under the Fourteenth or Eighth Amendment because
courts applied “the same legal standards to deliberate indifference claims brought under either
the Eighth or Fourteenth Amendment.” Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 554 (7th
Cir. 2016). After the Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466
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(2015), however, the Seventh Circuit held “that medical-care claims brought by pretrial
detainees under the Fourteenth Amendment are subject only to the objective unreasonableness
inquiry identified in Kingsley.” Miranda, 900 F.3d at 352. Consequently, Plaintiff’s claims
against Link should be analyzed under the Fourteenth Amendment’s objective unreasonableness
standard. See Walton v. Hendrickson, No. 17-cv-956-bbc, 2019 WL 1929202 (W.D. Wis. Apr.
30, 2019) (applying the Fourteenth Amendment’s objective unreasonableness standard to a
plaintiff who was incarcerated for a probation violation).
Under the Fourteenth Amendment’s objective unreasonableness standard, “the
controlling inquiry for assessing a due process challenge to a pretrial detainee’s medical care
proceeds in two steps. The first step, which focuses on the intentionality of the individual
defendant’s conduct, remains unchanged and ‘asks whether the medical defendants acted
purposefully, knowingly, or perhaps even recklessly when they considered the consequences of
their handling of [plaintiff’s] case.’” McCann v. Ogle Cty., Illinois, 909 F.3d 881, 886 (7th Cir.
2018) (quoting Miranda, 900 F.3d at 353). “A showing of negligence or even gross negligence
will not suffice.” Id. At the second step, the court asks “whether the challenged conduct was
objectively reasonable.” Id. “This standard requires courts to focus on the totality of facts and
circumstances faced by the individual alleged to have provided inadequate medical care and to
gauge objectively—without regard to any subjective belief held by the individual—whether the
response was reasonable.” Id.
i.

March 6, 2018

Nurse Link’s March 6, 2018 treatment of Plaintiff was not objectively unreasonable as
the facts establish that Plaintiff was not suffering from an objectively serious medical condition
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at that time. Under the objective reasonableness standard, a plaintiff “must still adequately
allege that she was suffering from an ‘objectively, sufficiently serious’ medical condition.”
Dodson v. Cook Cty. Jail, No. 16 CV 0345, 2019 WL 764041, at *3 (N.D. Ill. Feb. 21, 2019)
(quoting Townsend v. Cooper, 759 F.3d 678, 689 (7th Cir. 2014)); see also Miranda, 900 F.3d
at 347 (noting that the defendants conceded that a pretrial detainee’s condition was objectively
serious). In her treatment notes for her examination of Plaintiff immediately following his
altercation with the correctional officers, Nurse Link states “inmate was involved in a altercation
with officers has small open area on right wrist size of a pea informed inmate to wash area with
soap and water informed if any other injury to write to medical.” Dkt. No. 90-2 at 4. Plaintiff’s
small open wound does not constitute an objectively, sufficiently serious medical condition.
Morrisette v. Boyd, No. 16-3140, 2016 WL 4059185, at *3 (C.D. Ill. July 29, 2016) (holding
that scrapes and bruises are not considered objectively serious medical conditions); Williams v.
Elyea, 163 F. Supp. 2d 992, 998 (N.D. Ill. 2001) (holding that quarter-inch laceration in mouth
was not a serious medical need).
Plaintiff’s claims that he was suffering from a serious injury at the time are not supported
by the record. Plaintiff’s assertion that he was bleeding profusely as a result of the officers’
actions is not substantiated by the objective evidence: there are no signs that he was bleeding in
the recording of the incident and the only verified injury he sustained was a small pea-sized
laceration to his wrist. Although Plaintiff alleges, citing the absence of any mention in her
treatment notes, that Nurse Link did not assess injuries that he sustained to his knee, leg, and
ankle—injuries that allegedly led to him falling in the shower on March 10—Plaintiff’s
treatment notes subsequent to March 6 and March 10 confirm that he did not have any
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objectively serious injuries in those areas. A March 12 treatment note states that despite his
complaints of left ankle, knee, and right wrist pain Plaintiff’s range of motion for all three areas
remained intact. Dkt. No. 90-2 at 14–15. An additional treatment note from March 12 stated
that Plaintiff’s knee had full range of motion and no swelling or deformities. Id. at 16. In
addition, it was noted that although Plaintiff stated he was unable to walk there was no medical
abnormality to either leg. Id. Regarding Plaintiff’s wrist, an x-ray was ordered to rule out any
bony deformity or fracture and both wrists had full range of motion and capillary refill time to
all fingers under three seconds. Id. The treatment note concluded “no physical abnormalities
noted, no evidence of significant injury noted to any body system. Patient is medically
clear—pending results of X-ray to right wrist.” Id. The x-ray of Plaintiff’s right hand showed a
grossly intact right hand and wrist with no signs of deformities or fractures observed. Id. at 17.
Further treatment notes indicated no signs of any injuries despite Plaintiff’s continued
complaints. See id. at 18–36. Consequently, the record shows that Plaintiff was not suffering an
objectively serious medical condition when Link inspected him on March 6.
ii.

March 10, 2018

Plaintiff’s claim that Nurse Link’s care for him on March 10 was objectively
unreasonable fails for the same reason: Plaintiff did not suffer a serious injury as a result of his
fall. As discussed earlier, examinations of Plaintiff after March 10 showed no signs or
indications of any serious injuries as a result of this or the previous incident. Plaintiffs’ March
14 progress notes state, “[Patient’s] knee and back were assessed, no swelling, bruising,
discoloration, or loss of sensation noted, denies loss of bowel or bladder control. Patient has full
circulation to both feet and wrists, no objective abnormalities noted.” Id. at 18. Because there is
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no evidence that Plaintiff was suffering from objectively serious medical conditions, his claims
that Link’s care for him was objectively unreasonable fail, and the claims will be dismissed.
2.

Buboltz and Compton

Plaintiff’s claims against Buboltz and Compton fail for the same reason his claim against
Link does: the medical evidence does not establish that Plaintiff had injuries “so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001). Neither Buboltz nor Compton observed any
serious injuries, and their reliance on Link’s evaluation of Plaintiff’s injuries was appropriate:
“‘If a prisoner is under the care of medical experts . . . a non-medical prison official will
generally be justified in believing that the prisoner is in capable hands.’” Greeno v. Daley, 414
F.3d 645, 656 (7th Cir. 2005) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)).
Consequently, the claims will be dismissed.
D.

Failure to Accommodate Claims Against Buboltz and Diaz
Plaintiff contends that Buboltz and Diaz failed to accommodate his request for a

wheelchair or shower chair, thus denying him safe access to the shower facilities. The record,
however, establishes that Plaintiff did not require a wheelchair in order to safely get to/from the
shower nor a shower chair to safely shower. The medical department, which was contacted after
Plaintiff requested a wheelchair and shower chair, indicated that he had no injuries that required
accommodation. Buboltz and Diaz’s reliance on the medical department’s assessment was
reasonable, id., and their decision not to provide him with a wheelchair or shower chair did not
violate Plaintiff’s constitutional rights.

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E.

Plaintiff’s Motion Regarding Status of Plaintiff’s Motion for Summary Judgment
and Motion to Recruit Counsel
After the defendants’ motions for summary judgment were fully briefed, Plaintiff filed a

motion inquiring whether the court struck Plaintiff’s motion for summary judgment, stating he
never received a copy of any such order, and requesting that counsel be recruited. On April 12,
2019, the court granted Link’s motion to strike Plaintiff’s motion for summary judgment
pursuant to Federal Rule of Civil Procedure 16 because of Plaintiff’s unjustified delay in filing
his motion, Plaintiff had the opportunity to present his arguments in response to defendants’
motions for summary judgment, and because Plaintiff has the “burden of proof as to his claims,
the defendants’ own motions for summary judgment establish that he is not entitled to such
relief in any event.” Dkt. No. 138 at 2. The docket entry for the court’s order indicates that a
copy was mailed to Plaintiff. A copy of the court’s order will be included with the mailing of
this order to Plaintiff.
Regarding the recruitment of counsel, the court has denied three of Plaintiff’s motions to
recruit counsel, concluding that the case is not sufficiently complex to warrant court-recruited
counsel and, more importantly, that Plaintiff has demonstrated an ability to communicate with
the court to the extent necessary to litigate his claims. Plaintiff’s numerous filings with the court
have been coherent and clear. Plaintiff does not assert any new basis for his request in his
current motion that has not already been considered by the court. Accordingly, Plaintiff’s
motion to recruit counsel is denied.

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CONCLUSION
For the aforementioned reasons the defendants’ motions for summary judgment (Dkt
Nos. 81, 86) are GRANTED and Plaintiff’s Motion to Recruit Counsel (Dkt. No. 144) is
DENIED. The case is dismissed. The Clerk is directed to enter judgment accordingly. The
Clerk is also directed to include a copy of the court’s order striking Plaintiff’s motion for
summary judgment (Dkt. no. 138) with the copy of this order mailed to Plaintiff.
SO ORDERED this 7th day of June, 2019.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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