Williams v. Howard et al

Filing 47

ORDER signed by Judge Lynn Adelman on 4/19/11 granting in part and denying in part 42 Motion to Compel; denying without prejudice 46 Motion to Appoint Counsel. Further ordering defendants to supplement their discovery responses, consistent with this Order, on or before Monday, May 2, 2011. (cc: all counsel,via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICKY L. WILLIAMS,
Plaintiff,
v.

Case No. 10-C-168

STEPHEN HOWARD,
LESLIE GOMBUS, and
SCOTT HOFTIEZER,
Defendants

ORDER
Now before me are plaintiff’s motion to compel and his motion to appoint counsel.
I. MOTION TO COMPEL
In his motion to compel, plaintiff seeks defendants’ time cards from January 2007
and the complete conduct and history reports from Dodge Correctional Institution (DCI) for
each defendant. He argues that he needs the time cards to prove that defendants were
working in the time period of plaintiff’s complaint and the health service requests he sent
to them. Plaintiff also asserts that the conduct reports are necessary to show that
defendants have previously been in trouble for not following the rules. Defendants contend
that neither category of documents is relevant or admissible.
Under Federal Rule of Civil Procedure 37, a party is permitted to file a motion to
compel discovery where another party fails to respond to interrogatories or requests for
production of documents. See Fed. R. Civ. P. 37(a)(3)(B)(iii) and (iv). “The motion must
include a certification that the movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery in an effort to obtain it
without court action.” Fed. R. Civ. P. 37(a)(1). Although plaintiff’s certification is not in a

separate affidavit, his motion describes the correspondence between the parties in an
attempt to resolve this issue without the court’s involvement. He also attaches a copy of
the letter he received from defendants confirming that they would not disclose the
information without a court order. This satisfies the requirements of Rule 37(a)(1) and Civil
Local Rule 37. A motion to compel discovery pursuant to Rule 37(a) is addressed to the
sound discretion of the trial court. EEOC v. Klockner H & K Machines, Inc., 168 F.R.D.
233, 235 (E.D. Wis. 1996) (citation omitted).
Defendants acknowledge that their disciplinary files might be relevant had they ever
been disciplined for providing poor patient care, but they have not. Thus, defendants
submit that plaintiff cannot show that disciplinary records unrelated to patient care would
lead to discovery of relevant information. I am satisfied with defendants’ representation
in sworn discovery responses that none of the defendants have been disciplined by the
Department of Corrections regarding patient care and will deny the second half of plaintiff’s
motion to compel.
However, with regard to the time cards, plaintiff has articulated their relevance, and
defendants have presented nothing but a general objection. Plaintiff wants to be able to
show defendants’ presence at DCI during the relevant time period as evidence of their
ability to respond to his complaint and requests. That is relevant to plaintiff’s claims in this
case, and he should have access to information regarding the dates and times defendants
work during January 2007.

Plaintiff’s motion to compel will be granted in part.

If

defendants’ time cards contain personal identifying information, such as home address,
social security number, or employee identification number, they may be redacted.
Alternatively, if defendants do not keep time cards, a sworn list of the dates and hours
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worked by each defendant in January 2007 will suffice. Defendants shall serve plaintiff
with this information on or before Monday, May 2, 2011.
II. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff also has filed another motion for appointment of counsel. He argues that
he is untrained in the law and that this case is very difficult and is going to need an expert
witness, but he has no way of finding or retaining one. Plaintiff suggests that defendants’
counsel is doing everything in his power to make it hard for plaintiff to get information by
objecting to plaintiff’s discovery requests. Plaintiff asserts that he does not know how to
prepare and respond to motions and court filings. He cites the facts that this case involves
medical issues and maintains that he is not fully aware of the events at issue and is not
capable of gathering evidence and filing motions. He believes the appointment of counsel
would make a big difference in this case.
As I have noted before, he has satisfied the threshold burden of showing a good
faith attempt to obtain counsel. Thus, I will consider whether, given the difficulty of the
case, this plaintiff appears competent to try the case himself and, if not, whether the
presence of counsel would likely make a difference in the outcome of the case. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007) (citing Farmer v. Haas, 990 F.2d 319, 322 (7th
Cir.1993)).
I have concluded twice, most recently on January 7, 2011, that plaintiff’s filings
demonstrate an awareness of the factual and legal issues in this case and suggest that he
is competent to try this case. Since my January 7, 2011, Order, plaintiff filed a motion to
compel that complied with the requirements of the Federal Rules of Civil Procedure and

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the Civil Local Rules and is granted in part in this Order. Once again, my conclusion
regarding plaintiff’s competence remains the same. I will deny his motion.
Therefore,
IT IS ORDERED that plaintiff’s motion to compel (Docket #42) is GRANTED in part
and DENIED in part.
IT IS FURTHER ORDERED that defendants shall supplement their discovery
responses, consistent with this Order, on or before Monday, May 2, 2011.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket #46)
is DENIED WITHOUT PREJUDICE.
Dated at Milwaukee, Wisconsin, this 19th day of April, 2011.
/s
LYNN ADELMAN
District Judge

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