Williams v. Dittmann et al

Filing 33

ORDER signed by Judge Lynn Adelman on 1/14/09 finding as moot 15 Motion for Order; denying 16 Motion to Appoint Counsel ; denying 18 Motion for Discovery. (cc: plaintiff, all counsel) (Wesolek, Marie)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
RICKY L. WILLIAMS, Plaintiff, v. BETH DITTMANN, JOHN DOES I-V, JANE DOE I and JANE DOE II, Defendants, Case No. 07-C-1158

DECISION AND ORDER Plaintiff, Ricky L. Williams, filed this pro se civil rights action under 42 U.S.C. § 1983. In a decision and order dated June 6, 2008, I screened plaintiff's complaint and allowed him to proceed on an Eighth Amendment claim against the John and Jane Doe defendants and a failure to intervene claim against defendant Dittmann. I also allowed the plaintiff to proceed on a state law negligence claim against all defendants. Before me now are several motions filed by plaintiff. I. MOTION FOR ORDER (DOCKET #15) Plaintiff asks me to correct an error in my June 6, 2008 decision and order. I identified the defendants as Green Bay Correctional Institution employees; they are, in fact, Dodge Correctional Institution employees. I acknowledge that the employees actually work at DCI, as is evidenced from the context of the decision and order. A separate order is not necessary. I will deny plaintiff's motion as moot.

II. MOTION TO APPOINT COUNSEL (DOCKET #16) Plaintiff has asked me to appoint counsel. Although civil litigants do not have a constitutional or statutory right to appointed counsel, I have the discretion to request attorneys to represent indigents in appropriate cases pursuant to 28 U.S.C. § 1915(e)(1). Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.2007); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997) (citing Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995)). As a threshold matter, litigants must make a reasonable attempt to secure private counsel on their own. Pruitt, 503 F.3d at 654; Zarnes, 64 F.3d at 288. Plaintiff has satisfied the threshold burden by showing his attempts to secure private legal counsel on his own. In fact, plaintiff submitted 23 letters from law firms and legal groups declining the plaintiff's requests for representation. Because plaintiff has satisfied his threshold burden, I must address the following question: given the difficulty of the case, does this plaintiff appear competent to try the case himself and, if not, would the presence of counsel likely make a difference in the outcome of the case. Pruitt, 503 F.3d at 654-655 (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Plaintiff has submitted two affidavits from John G. Sekella, another prisoner

who was assisting plaintiff with this litigation. Sekella indicates that will no longer be able to assist plaintiff with this case and suggests that the plaintiff needs counsel to replace his help. However, the mere fact that plaintiff was receiving assistance from another prisoner does not mean that he is unable to litigate this matter himself. The issues in this case appear at this stage to be straightforward and uncomplicated. Therefore, at this time, I do

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not believe that the presence of counsel is likely to make a difference in the outcome of this case. Accordingly, I will deny the plaintiff's motion to appoint counsel without prejudice.1 III. MOTION FOR DISCOVERY (DOCKET #18) Plaintiff filed a motion for discovery from a non-party. He seeks specific information and documents from Timothy Lundquist, the Warden of Dodge Correctional Institution, including: (1) the duty rosters for five particular shifts and areas and the names of two corrections officers who handed out medications at specified times; (2) documentation depicting the current location of each identified defendant so they can be served; and (3) copies of the medication handout log to confirm the identities of John Does I-V. At this time, I am unable to order nonparty Timothy Lundquist, or DCI, to produce documents or other information. I will deny plaintiff's motion for discovery. Plaintiff may serve his discovery requests on defendant Dittmann, who may be able to produce the information. However, if defendant Dittmann is unable to produce the requested information, Federal Rule of Civil Procedure 45 described the process required to obtain information from a nonparty (I have enclosed a copy of Rule 45 with this decision and order). IV. CONCLUSION For the foregoing reasons,

Mr. Sekella's affidavits aver that plaintiff is "basically illiterate" and can read and write at only the fourth grade level. I will leave open the possibility of a future motion to appoint counsel after I have had the opportunity to evaluate pleadings prepared and filed by plaintiff to determine whether he is competent to try the case himself. Pruitt, 503 F.3d at 654-655 (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)) 3

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IT IS THEREFORE ORDERED that plaintiff's motion for order (Docket #15) is DENIED AS MOOT. IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel (Docket #16) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that plaintiff's motion for discovery (Docket #18) is DENIED. Dated at Milwaukee, Wisconsin, this 14 day of January, 2009.

/s LYNN ADELMAN District Judge

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F e d e r a l Rule of Civil Procedure 45. Subpoena ( a ) In General. 1. ( 1 ) Form and Contents. ( A ) Requirements -- In General. Every subpoena m u s t : ( i ) state the court from which it issued; (ii) state the title of the action, the court in which it is pending, and its civil-action num b e r ; (iii) com m a n d each person to whom it is directed to do the following at a specified tim e and place: attend and te s tify; produce designated docum e n ts , electronically stored inform a tio n , or tangible things in that person's p o s s e s s io n , custody, or control; or perm it the inspection of prem is e s ; and (iv) set out the text of Rule 45(c) and (d). (B) Command to Attend a Deposition -- Notice of the Recording Method. A subpoena com m a n d in g attendance a t a deposition m u s t state the m e t h o d for recording the testim o n y. (C) Combining or Separating a Command to Produce or to Perm i t Inspection; Specifying the Form for E le c tr o n ic a lly Stored Information. A com m a n d to produce docum e n ts , electronically stored inform a tio n , or ta n g ib le things or to perm it the inspection of prem is e s m a y be included in a subpoena com m a n d in g attendance a t a deposition, hearing, or trial, or m a y be set out in a separate subpoena. A subpoena m a y specify the form o r form s in which electronically stored inform a t io n is to be produced. (D) Command to Produce; Included Obligations. A com m a n d in a subpoena to produce docum e n ts , e le c tr o n ic a lly stored inform a tio n , or tangible things requires the responding party to perm it inspection, copying, te s tin g , or sam p lin g of the m a te r ia ls . ( 2 ) Issued from W h ic h Court. A subpoena m u s t issue as follows: ( A ) for attendance at a hearing or trial, from the court for the district where the hearing or trial is to be held; ( B ) for attendance at a deposition, from the court for the district where the deposition is to be taken; and (C) for production or inspection, if separate from a subpoena com m a n d in g a person's attendance, from the c o u r t for the district where the production or inspection is to be m a d e . ( 3 ) Issued by W h o m . T h e clerk m u s t issue a subpoena, signed but otherwise in blank, to a party who requests it. That party m u s t c o m p le t e it before service. An attorney also m a y issue and sign a subpoena as an officer of: ( A ) a court in which the attorney is authorized to practice; or ( B ) a court for a district where a deposition is to be taken or production is to be m a d e , if the attorney is a u th o r iz e d to practice in the court where the action is pending. ( b ) Service. ( 1 ) By W h o m ; Tendering Fees; Serving a Copy of Certain Subpoenas. A n y person who is at least 18 years old and not a party m a y serve a subpoena. Serving a subpoena requires d e liv e r in g a copy to the nam e d person and, if the subpoena requires that person's attendance, tendering the f e e s for 1 day's attendance and the m ile a g e allowed by law. Fees and m ile a g e need not be tendered when the s u b p o e n a issues on behalf of the United States or any of its officers or agencies. If the subpoena com m a n d s th e production of docum e n ts , electronically stored inform a tio n , or tangible things or the inspection of prem is e s b e f o r e trial, then before it is served, a notice m u s t be served on each party. ( 2 ) Service in the United States. S u b j e c t to Rule 45(c)(3)(A)(ii), a subpoena m a y be served at any place: ( A ) within the district of the issuing court;

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( B ) outside that district but within 100 m ile s of the place specified for the deposition, hearing, trial, production, o r inspection; (C) within the state of the issuing court if a state statute or court rule allows service at that place of a subpoena is s u e d by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, p r o d u c tio n , or inspection; or (D) that the court authorizes on m o tio n and for good cause, if a federal statute so provides. ( 3 ) Service in a Foreign Country. 2 8 U.S.C. § 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country. ( 4 ) Proof of Service. Proving service, when necessary, requires filing with the issuing court a statem e n t showing the date and m a n n e r of service and the nam e s of the persons served. The statem e n t m u s t be certified by the server. ( c ) Protecting a Person Subject to a Subpoena. ( 1 ) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena m u s t take reasonable steps to avoid im p o s in g undue burden or expense on a person subject to the subpoena. The issuing court m u s t enforce this d u ty and im p o s e an appropriate sanction -- which m a y include lost earnings and reasonable attorney's fees -- on a party or attorney who fails to com p ly. ( 2 ) Com m a n d to Produce Materials or Perm it Inspection. ( A ) Appearance Not Required. A person com m a n d e d to produce docum e n ts , electronically stored inform a tio n , o r tangible things, or to perm it the inspection of prem is e s , need not appear in person at the place of production o r inspection unless also com m a n d e d to appear for a deposition, hearing, or trial. ( B ) Objections. A person com m a n d e d to produce docum e n t s or tangible things or to perm it inspection m a y s e r v e on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or s a m p lin g any or all of the m a te r ia ls or to inspecting the prem i s e s -- or to producing electronically stored in f o r m a tio n in the form or form s requested. The objection m u s t be served before the earlier of the tim e specified f o r com p lia n c e or 14 days after the subpoena is served. If an objection is m a d e , the following rules apply: (i) At any tim e , on notice to the com m a n d e d person, the serving party m a y m o v e the issuing court for an order c o m p e llin g production or inspection. (ii) These acts m a y be required only as directed in the order, and the order m u s t protect a person who is neither a party nor a party's officer from significant expense resulting from com p lia n c e . ( 3 ) Quashing or Modifying a Subpoena. ( A ) W h e n Required. On tim e ly m o t io n , the issuing court m u s t quash or m o d if y a subpoena that: ( i ) fails to allow a reasonable tim e to com p ly; (ii) requires a person who is neither a party nor a party's officer to travel m o r e than 100 m ile s from where that p e r s o n resides, is em p lo ye d , or regularly transacts business in person -- except that, subject to Rule 4 5 ( c ) ( 3 ) ( B ) ( iii) , the person m a y be com m a n d e d to attend a trial by traveling from any such place within the state w h e r e the trial is held; (iii) requires disclosure of privileged or other protected m a t te r , if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) W h e n Perm itte d . T o protect a person subject to or affected by a subpoena, the issuing court m a y, on m o t io n , quash or m o d if y the subpoena if it requires: (i) disclosing a trade secret or other confidential research, developm e n t , or com m e r c ia l inform a t io n ;

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( ii) disclosing an unretained expert's opinion or inform a tio n that does not describe specific occurrences in d is p u te and results from the expert's study that was not requested by a party; or (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel m o r e than 100 m ile s to attend trial. ( C ) Specifying Conditions as an Alternative. In the circum s ta n c e s described in Rule 45(c)(3)(B), the court m a y, in s te a d of quashing or m o d if yin g a subpoena, order appearance or production under specified conditions if the s e r v in g party: (i) shows a substantial need for the testim o n y or m a te r ia l that cannot be otherwise m e t without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably com p e n s a te d . ( d ) Duties in Responding to Subpoena. ( 1 ) Producing Docum e n ts or Electronically Stored Inform a tio n . T h e s e procedures apply to producing docum e n ts or electronically stored inform a tio n : ( A ) Documents. A person responding to a subpoena to produce docum e n ts m u s t produce them as they are kept in the ordinary course of business or m u s t organize and label them to correspond to the categories in the dem and. ( B ) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form f o r producing electronically stored inform a t io n , the person responding m u s t produce it in a form or form s in w h ic h it is ordinarily m a in t a in e d or in a reasonably usable form or form s . (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce t h e sam e electronically stored inform a t io n in m o r e than one form . (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of e le c tr o n ic a lly stored inform a tio n from sources that the person identifies as not reasonably accessible because o f undue burden or cost. On m o tio n to com p e l discovery or for a protective order, the person responding m u s t s h o w that the inform a tio n is not reasonably accessible because of undue burden or cost. If that showing is m a d e , the court m a y nonetheless order discovery from such sources if the requesting party shows good cause, c o n s id e r in g the lim ita t io n s of Rule 26(b)(2)(C). The court m a y specify conditions for the discovery. ( 2 ) Claim in g Privilege or Protection. ( A ) Information W ith h e ld . A person withholding subpoenaed inform a tio n under a claim that it is privileged or s u b j e c t to protection as trial-preparation m a t e r i a l m u s t : ( i) expressly m a k e the claim ; and (ii) describe the nature of the withheld docum e n ts , com m u n ic a tio n s , or tangible things in a m a n n e r that, without r e v e a lin g inform a t io n itself privileged or protected, will enable the parties to assess the claim . (B) Information Produced. If inform a tio n produced in response to a subpoena is subject to a claim of privilege o r of protection as trial-preparation m a te r ia l, the person m a k in g the claim m a y notify any party that received the in f o r m a tio n of the claim and the basis for it. After being notified, a party m u s t prom p tly return, sequester, or d e s tr o y the specified inform a tio n and any copies it has; m u s t not use or disclose the inform a tio n until the claim is resolved; m u s t take reasonable steps to retrieve the inform a tio n if the party disclosed it before being notified; a n d m a y prom p tly present the inform a tio n to the court under seal for a determ in a tio n of the claim . The person w h o produced the inform a tio n m u s t preserve the inform a tio n until the claim is resolved. ( e ) Contem p t . T h e issuing court m a y hold in contem p t a person who, having been served, fails without adequate excuse to o b e y the subpoena. A nonparty's failure to obey m u s t be excused if the subpoena purports to require the n o n p a r t y to attend or produce at a place outside the lim its of Rule 45(c)(3)(A)(ii).

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