Ward v. Buchanan et al

Filing 28

ORDER signed by Judge William C Griesbach on 2/17/2021. Plaintiff's request for subpoenas is DENIED and his motion for extension of time is GRANTED. Plaintiff's response to Defendant's motion for summary judgment is due on or before 3/31/2021. (cc: all counsel and mailed to pro se party)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA LEE WARD, JR.,
Plaintiff,
v.

Case No. 20-C-1328

KAYLENE BETANCOURT,
Defendant.
ORDER
Plaintiff Joshua Lee Ward, Jr., who is currently serving a state prison sentence at Columbia
Correctional Institution, filed this action against Defendant Kaylene Betancourt, alleging that she
used excessive force against him when she pulled Plaintiff’s arm out of his trap door. This matter
comes before the Court on Plaintiff’s request that the Court issue subpoenas to obtain discovery
and motion for extension of time to respond to Defendant’s motion for summary judgment on
exhaustion grounds.
Plaintiff requests that the Court subpoena Defendant so that he may have access to his
conduct reports and Defendant’s body camera and padded cell footage on the night of June 28,
2020, into the morning of June 29, 2020. On January 29, 2021, the Court stayed discovery on the
merits of Plaintiff’s claim until it issues a decision on Defendant’s motion for summary judgment.
Plaintiff’s request for subpoenas is denied on this basis.
Even if discovery were not stayed, the Court would not subpoena documents and other
materials for Plaintiff. A person seeking to issue a subpoena must ask the Clerk of Court to provide
him with a subpoena form; the Clerk of Court will sign a blank subpoena form and deliver it to the

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requesting party. Fed. R. Civ. P. 45(a)(3). The requesting party must then complete the form and
make arrangements and pay for someone to serve the subpoena on the individuals from whom he
wants to obtain the documents. The party seeking a subpoena (in this case, Plaintiff) 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) (“District courts do not have statutory
authority to waive witness fees for indigent civil litigants . . . .”); Nail v. Gutierrez, No. 06-cv-292,
2007 WL 4255535, at *1 (N.D. Ind. Nov. 30, 2007) (“28 U.S.C. § 1915 does not authorize the
expenditure of public funds for deposition costs; indeed, that statute does not relieve a pro se
prisoner proceeding in forma pauperis from paying any of his discovery costs.” (citations
omitted)).
Given the costs associated with subpoenas, incarcerated plaintiffs rarely rely on subpoenas
to collect the information they need to prosecute their cases. Instead, they rely on the discovery
process by serving interrogatories, requests for admission, and requests for production. See Fed.
R. Civ. P. 33, 34, 36. In the event the Court lifts the stay on discovery, Plaintiff may use these
discovery tools to ask Defendant up to twenty-five written questions (called interrogatories in the
Federal Rules of Civil Procedure) and he may ask her to give him documents that she has in her
possession. See id. Defendant may object to a request to the extent she believes the request is
improper. If Plaintiff does not agree with an objection, he should try to informally resolve the
dispute with Defendant’s counsel. See Civil L.R. 37. Most parties are able to resolve discovery
disputes without the Court’s involvement.
Plaintiff also requests an extension of time to respond to Defendant’s motion for summary
judgment on exhaustion grounds. He notes that, due to the COVID-19 pandemic, he does not have
access to legal materials. The issue raised in Defendant’s motion for summary judgment is

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Plaintiff’s failure to exhaust his administrative remedies. Exhaustion is a threshold issue that is
not unique to Plaintiff’s case. Plaintiff must explain what evidence exists to establish that he
exhausted his administrative remedies. The facts that support whether Plaintiff exhausted his
administrative remedies are generally available through his own knowledge, not the law library or
other legal material. The Court will nevertheless grant the request for an extension of time to allow
Plaintiff to respond to the motion for summary judgment.
IT IS THEREFORE ORDERED that Plaintiff’s request for subpoenas is DENIED and
his motion for an extension of time is GRANTED. Plaintiff’s response to Defendant’s motion for
summary judgment is due on or before March 31, 2021.
Dated at Green Bay, Wisconsin this 17th day of February, 2021.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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