Froemel v. Doe

Filing 29

DECISION AND ORDER signed by Judge William C Griesbach on 1/13/2023 granting 25 Motion to stay discovery on the substance of Froemel's claim; denying 28 Motion to appoint counsel without prejudice; denying 28 Motion for discovery; and granting 28 Motion for extension of time to respond to defendant's motion for summary judgment or provide a written explanation why he is unable to do so by 3/6/2023. (cc: all counsel and mailed to pro se party)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFERY R. FROEMEL,
Plaintiff,

v.

Case No. 22-C-827

KAREN SCHOENIKE,
Defendant.
DECISION AND ORDER
Plaintiff Jeffery Froemel, who is incarcerated at Waupun Correctional Institution, is
representing himself in this 42 U.S.C. §1983 case. He is proceeding on a deliberate indifference claim
based on allegations that Defendant delayed providing him with dental care. On January 5, 2023,
Defendant filed a motion for summary judgment on the ground that Froemel failed to exhaust the
available administrative remedies before he initiated this lawsuit, along with a motion to stay
discovery on the substance of Froemel’s claim pending resolution of the summary judgment motion.
The Court will grant Defendant’s motion to stay discovery on the substance of Froemel’s claim. On
January 10, 2023, Froemel filed a letter motion raising several issues and requests, which the Court
will address in turn.
First, Froemel asserts that he served discovery requests on November 30, 2022. It is not clear,
but it appears that he has not yet received Defendant’s responses. Because the Court has granted
Defendant’s motion to stay discovery on the substance of Froemel’s claim, Defendant does not have
to respond to Froemel’s discovery requests at this time. Defendant’s summary judgment motion
asserts that Froemel did not file an inmate complaint about the alleged delayed dental care before he
filed his lawsuit. The Prison Litigation Reform Act requires that a prisoner complete the available

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administrative remedies before he files a lawsuit. See Ross v. Blake, 578 U.S. 632, 635 (2016). If a
defendant proves that a prisoner was able to but did not complete the inmate grievance process before
he filed his lawsuit, the Court must dismiss the case. At this point, whether Froemel completed the
inmate grievance process (or was prevented from doing so) is the only issue before the Court.
Whether Defendant delayed providing Froemel with dental care as he alleges is not currently at issue.
Froemel next asks the Court to recruit a lawyer to represent him on a volunteer basis. In a
civil case, the Court has discretion to recruit a lawyer for individuals who cannot afford to hire one.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. §1915(e)(1); Ray v. Wexford Health
Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013). “[D]eciding whether to recruit counsel ‘is a
difficult decision: Almost everyone would benefit from having a lawyer, but there are too many
indigent litigants and too few lawyers willing and able to volunteer for these cases.’” Henderson v.
Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.
2014)). Accordingly, in exercising its discretion, the Court must consider two things: “(1) ‘has the
indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from
doing so,’ and (2) ‘given the difficulty of the case, does the plaintiff appear competent to litigate it
himself?’” Eagan v. Dempsey, 987 F.3d 667, 682 (7th Cir. 2021) (quoting Pruitt v. Mote, 503 F.3d
647, 654–55 (7th Cir. 2007)).
Froemel has not shown that he made efforts to get a lawyer before asking the Court to recruit
a lawyer. His failure to do so is a sufficient basis for the Court to deny his motion, but even if Froemel
had provided evidence of his efforts to get a lawyer, the Court would deny his motion at this stage
because, as noted, the issue currently before the Court is very straightforward. All Froemel has to do
is provide the Court with evidence that he completed the inmate grievance process before he filed his
lawsuit or that he was somehow prevented from completing the process. For example, Froemel could
provide copies of the inmate complaint and appeal that he filed along with the decisions on his
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submissions, or he could prepare a declaration explaining what steps he took to complete the process
before he filed his lawsuit. 1 Froemel is advised, however, that if he did not complete the inmate
grievance process before he filed his lawsuit, the Court must dismiss this case (or Froemel may choose
to voluntarily dismiss it).
Froemel also asks for additional time to respond to Defendant’s summary judgment motion.
The Court will grant his request. He is advised to review the notice and order the Court entered on
January 6, 2023, and the litigation guide that the Court sent along with the screening order. These
resources outline the procedural requirements for responding to Defendant’s motion.

If after

reviewing Defendant’s summary judgment motion, Froemel agrees that he did not complete the
inmate grievance process before he filed this lawsuit and that nothing prevented him from doing so,
he may choose to file a motion to voluntarily dismiss this case. If Froemel believes he completed the
inmate grievance process or that he was prevented from doing so, he must respond to Defendant’s
motion, including her proposed statements of fact and legal brief. The Court will extend his deadline
to respond to March 6, 2023.
Finally, Froemel points out that Defendant now appears to believe that Warden Hepp rather
than Dr. Karen Schoenike is the proper Defendant. Warden Hepp was dismissed from this action on
September 22, 2022. Karen Schoenike is the only Defendant. It is likely that Defendant’s counsel
simply forgot to update the caption on her document when she prepared the summary judgment
motion.
IT IS THEREFORE ORDERED that Defendant’s motion to stay discovery on the substance
of Froemel’s claim (Dkt. No. 25) is GRANTED. If Froemel is able to show that he exhausted the

At the bottom of his declaration, he should state: “I declare under penalty of perjury that the
foregoing is true and correct. Executed on [date]. [Signature].” 28 U.S.C. § 1746(2).
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1

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inmate grievance process before he filed his lawsuit or that the process was unavailable to him, the
Court will reopen discovery on the substance of his claim.
IT IS FURTHER ORDERED that Froemel’s motion to appoint counsel (Dkt. No. 28) is
DENIED without prejudice.
IT IS FURTHER ORDERED that Froemel’s motion for discovery (Dkt. No. 28) is
DENIED.
IT IS FURTHER ORDERED that Froemel’s motion for an extension of time (Dkt. No. 28)
is GRANTED. Froemel must respond to Defendant’s motion for summary judgment or provide a
written explanation of why he is unable to do so by March 6, 2023. If Froemel does not respond by
the deadline, the Court will assume that Froemel agrees with the facts asserted by Defendant, which
will likely result in the Court granting Defendant’s motion and dismissing this case. If Froemel agrees
with Defendant’s motion, he may file a motion to voluntarily dismiss this action.
Dated at Green Bay, Wisconsin this 13th

day of January, 2023.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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