Schmidt v. Clarke et al
Filing
72
ORDER signed by Judge J P Stadtmueller on 4/18/12: denying without prejudice 67 plaintiff's motions to hold the defendants in contempt of court and to appoint counsel; granting 67 plaintiff's motion to extend time to file an amended co mplaint due to defendants' failure to resolve discovery issues in a timely manner - no further extensions will be granted; plaintiff shall file a properly amended complaint no later than 5/4/12. See Order. (cc: plaintiff, all counsel, Milw County Executive Chris Abele, Corporation Counsel Kimberly Walker) (nm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT S. SCHMIDT,
Plaintiff,
v.
Case No. 10-CV-381-JPS
DAVID A. CLARKE, JR., et al.
Defendants.
ORDER
The pro se plaintiff, who is confined at the Oshkosh Correctional
Institution, is proceeding in forma pauperis on a claim under 42 U.S.C. § 1983,
that the defendants deprived him of his prescribed blood thinner and blood
tests while he was in the custody of the Milwaukee County Sheriff, resulting
in a large and painful blood clot in his left leg. On March 8, 2012, the plaintiff
filed a motion asking the court to hold the defendants in contempt for failing
to meet with him by a March 7, 2012 deadline to review records and conduct
a deposition. The plaintiff also requests additional time to amend his
complaint, due to the defendants’ latest delays in resolving discovery issues,
and asks the court to appoint counsel for him.
Regrettably, this case has a history of delays due to the Milwaukee
County Corporation Counsel’s failure to provide proper discovery in a
timely fashion, including past failures to respond to motions to compel
discovery filed by the plaintiff on June 22, 2011, July 28, 2011, and September
6, 2011. Former counsel for the defendants indicated at a show cause hearing
on December 21, 2011, that he or others from his office would meet
personally with the plaintiff to address discovery issues. That attorney then
retired before fully addressing, much less resolving, the outstanding
discovery issues.
Current defense counsel appeared at a second hearing on January 20,
2012, and agreed to meet personally with the plaintiff and depose him. By
written order of February 6, 2012, the court required that discovery related
to the identification of the proper defendants be completed no later than
March 7, 2012, so that a properly amended complaint could be filed by April
5, 2012. Defense counsel sent a letter to the plaintiff on February 2, 2012, and
asked the plaintiff to identify specific questions and provide documents.
After receiving the plaintiff’s response on February 16, 2012, defense counsel
determined that March 16, 2012, was the soonest possible date to meet with
the plaintiff at Oshkosh Correctional Institution.1 In a brief filed April 10,
2012, defense counsel confirms that she personally met with plaintiff,
resolved all outstanding discovery issues related to the identification of the
proper defendants, and deposed the plaintiff on March 16, 2012.
The court is cognizant of the many demands upon defense counsel,
and that she inherited this case and its outstanding discovery issues from
prior counsel. Nonetheless, March 16, 2012, is after the March 7, 2012,
deadline that was established by court order, and defense counsel did not
request an extension of time to conclude the discovery that was agreed upon
1
In a brief filed March 13, 2012, defense counsel stated that the delay was due to
the need to “coordinate a date in which Oshkosh Correctional had a room available all day
and that Attorney Dehring’s calendar allowed.” (Docket #69, at 2). The plaintiff countered
on April 9, 2012, with a copy of correspondence from Oshkosh Correctional confirming that
the prison has several rooms available for attorney visits, one of which should have been
available during an earlier time period. Defense counsel’s next brief, filed April 10, 2012,
does not mention the issue of coordinating a room’s availability, and attributes the delay
solely to defense counsel’s heavy court calendar and previously planned vacation.
Page 2 of 5
at the January 20, 2012 court hearing. This is the only delay that current
counsel has created in this case, and under the extenuating circumstances
identified by counsel, a nine-day delay is not egregious. Nor is it necessary
to hold the defendants in contempt, as the violation has since been corrected.
However, in view of the full history of prior discovery delays in this case,2
the plaintiff may be entitled to recover his expenses in filing motions to
compel from the defendants. If the plaintiff wishes to seek reimbursement
under Federal Rule Civil Procedure 37(a)(5), he should file a motion for
reimbursement that documents his expenses in bringing those motions to
compel discovery. Additionally, Ms. Kimberly Walker, Milwaukee County
Corporation Counsel, together with her staff are urged to revisit any office
procedures in place to ensure that reasonable discovery demands are
addressed promptly and that court orders are timely followed in all cases.
Suffice it to simply state that any further failures to properly comply with
court orders will of necessity result in the imposition of significant sanctions,
including suspension of the privilege to practice before this court.
As for the matter of plaintiff’s request for the appointment of counsel,
the court will not recruit counsel for the plaintiff at this time. Although the
court is authorized to request an attorney to represent an indigent civil
litigant pursuant to 28 U.S.C. § 1915(e)(1), indigent civil litigants have no
absolute constitutional or statutory right to be represented by counsel in
federal court. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007). The plaintiff
2
The plaintiff was initially ordered to identify the Doe defendants by March 28,
2011. (Court’s Scheduling Order of January 24, 2011, Docket #14). That deadline has been
extended multiple times due to the defendants’ repeated failure to provide discovery that
was reasonably and properly requested by the plaintiff. (See Court Orders of April 4, 2011,
June 8, 2011, August 2, 2011, and February 6, 2012).
Page 3 of 5
has documented unsuccessful efforts to retain counsel on his own, but he has
advocated vigorously and clearly on his own behalf and appears competent
to litigate his own case at this point in the proceedings. Accordingly, the
court will not recruit counsel for the plaintiff at this time. However, the court
may revisit this decision as the case proceeds if it appears that counsel is
required. See Santiago v. Wells, 599 F.3d 749, 762-65 (7th Cir. 2010) (holding
that district court should have recruited counsel for plaintiff who transferred
to another correctional facility and encountered difficulties in conducting
necessary pretrial discovery with uncooperative prison officials and
defendants).
Accordingly,
IT IS ORDERED that the plaintiff's motions to hold the defendants
in contempt of court and to appoint counsel (Docket #67) be and the same are
hereby DENIED without prejudice. The plaintiff may file a motion under
Federal Rule Civil Procedure 37(a)(5), for reimbursement that documents his
expenses in bringing his motions to compel discovery.
IT IS FURTHER ORDERED that the plaintiff’s motion to extend time
to file an amended complaint due to the defendants’ failure to resolve
discovery issues in a timely manner (Docket #67) be and the same is hereby
GRANTED. No further motions for extension of time will be granted.
IT IS FURTHER ORDERED that the plaintiff shall file a properly
amended complaint, no later than May 4, 2012, that includes only those
defendants who acted with deliberate indifference to the plaintiff’s medical
needs, and that describes how each of these defendants violated the
plaintiff’s rights.
Such complaint shall be labeled “Second Amended
Complaint” and shall be complete in itself, without reference to any prior
Page 4 of 5
complaint. Once this amended complaint is received, it will be screened by
the court.
Dated at Milwaukee, Wisconsin, this 18th day of April, 2012.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
Page 5 of 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?