Johnson v. Pugh

Filing 36

ORDER signed by Judge Rudolph T Randa on 02/15/2012 denying 19 Motion for Reconsideration ; denying 22 32 Motion for Order; denying 26 Motion to Disqualify Judge; denying 29 31 Motion for Default Judgment; denying 30 34 Motion for Entry of Default. (cc: all counsel; via US Mail w/copy of Local Rules to Steven Johnson) (Koll, J)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STEVEN JOHNSON,
Petitioner,
v.

Case No. 11-C-865

JEFFREY PUGH,
Warden of Stanley Correctional Institution,
Respondent.

DECISION AND ORDER

RELEVANT BACKGROUND
This Decision and Order addresses the eight motions filed by the pro se
Petitioner, Steven Johnson (“Johnson”). Currently in state custody at the Stanley Correctional
Institution in Stanley, Wisconsin for his 2009 conviction by the Circuit Court for Milwaukee
County, Wisconsin for robbery by threat of force under Wis. Stat. § 943.32(1)(b), see State v.
Johnson, No. 2008CF195 (Milw. Cty. Wis.), Johnson is serving a maximum sentence of 13
years, with a minimum of nine years of incarceration and a maximum of four years of
extended supervision.

On September 12, 2011, pursuant to 28 U.S.C. § 2254, Johnson filed a pro se
petition for writ of habeas corpus challenging his 2009 conviction. Thereafter, on September
27, 2011, the Supreme Court of Wisconsin denied Johnson’s petition for review.
Prior to the Court’s completion of its preliminary review of his case pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts, Johnson
filed four motions in this action. On October 13, 2011, Johnson filed a motion for this Court
to comply with Rule 4, reminding the Court that it must promptly examine the issues. On
November 16, 2011, Johnson filed a motion to disqualify Magistrate Judge Patricia J. Gorence
(“Gorence”). On November 21 and 28, 2011, Johnson filed motions to disqualify this Court.
Johnson’s motions to disqualify are predicated on the alleged personal bias of the challenged
judge.
On November 29, 2011, the Court issued a Decision and Order addressing
Johnson’s four motions and reflecting its Rule 4 determination. In granting Johnson’s motion
to comply with Rule 4, the Court noted that the primary reason for the delay in completing its
preliminary Rule 4 review was the additional complexity created by Johnson’s incomplete
understanding of the law and lack of compliance with court formalities. The Court denied
Johnson’s motion to disqualify Magistrate Judge Gorence on the basis that the Respondent,
Jeffrey Pugh (“Pugh”), had not filed a notice of consent or non-consent as required by 28

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U.S.C. § 636(c) and, therefore, the case not assigned to her.1 Johnson’s two motions to
disqualify this Court were denied because Johnson’s allegations of bias were based solely on
the delay in the issuance of the Court’s decision and thus did not rise to the level of prejudice
or bias that requires recusal under 28 U.S.C. § 455(b)(1).
Regarding the merits of Johnson’s habeas petition, the Court found that grounds
five through eight were plainly without merit and dismissed them for failure to state a
cognizable claim upon which federal habeas relief may be granted. The Court ordered Pugh
to file an answer to Johnson’s petition as to grounds one through four. Though Pugh has not
yet filed his answer, Johnson has filed eight motions following the issuance of the Court’s
November 29, 2011, Decision and Order.

ANALYSIS
The motions before the Court relate to requests for admissions, reconsideration,
disqualification, and default and default judgment. For the sake of brevity, the Court addresses
Johnson’s motions by consolidating them by topic.

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In addition, M agistrate Judge W illiam E. Callahan would preside over this matter if the parties consented
to the jurisdiction of the magistrate judge, because he is the magistrate judge who was assigned to this action according
to the District’s system for the random assignment of civil actions.

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Requests for Admission
On December 12, 2011, Johnson filed a request for admissions. Having received
no response, on January 9, 2012, Johnson filed a motion to grant his request for admissions.
Thereafter, on January 13, 2012, he filed a second request for admissions. On February 13,
2012, Johnson filed a motion to grant his second request for admissions.
Johnson relies on Rule 36 of the Federal Rules of Civil Procedure as providing
him with the authority to make requests for admissions. However, Johnson may not be aware
that a habeas corpus petitioner, unlike the usual civil litigant in federal court, is not entitled
to discovery as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997).
“Discovery in habeas corpus actions is extremely limited.” See Glascoe v. Bezy, 421 F.3d 543
(7th Cir. 2005).
Rule 6(a) of the Rules Governing Section 2254 Cases in United States District
Courts provides for discovery in habeas corpus actions, stating that “[a] judge may, for good
cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and
may limit the extent of discovery.” In order to satisfy the two requirements of the Rule 6(a)
test, a petitioner must: (1) make a colorable claim showing that the underlying facts, if proven,
constitute a constitutional violation; and (2) show “good cause” for the discovery. Hubanks
v. Frank, 392 F.3d 926, 933 (7th Cir. 2004).

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The Advisory Committee Note to the 1976 adoption of Rule 6 make it clear that
discovery in habeas proceedings is subject to the discretion of the Court. The note states “This
rule prescribes the procedures governing discovery in habeas corpus cases. Subdivision (a)
provides that any party may utilize the processes of discovery available under the Federal
Rules of Civil Procedure (rules 26-37) if, and to the extent that, the judge allows.” (Emphasis
added). Rule 6(b) further provides that “[a] party requesting discovery must provide reasons
for the request. The request must also include any proposed interrogatories and requests for
admission, and must specify any requested documents.” Rule 6(b) of the Rules Governing
Section 2254 Cases in United States District.
Johnson did not obtain permission from the Court to conduct discovery.
Moreover, even if Johnson’s motions to grant admissions were construed as seeking leave to
pursue his first and second requests for admissions, he has not demonstrated good cause for
his requests for admissions. Therefore, Johnson’s motions to grant his requests for admissions
are denied.
Motion for Reconsideration
On December 12, 2011, Johnson filed a motion for reconsideration of the
Court’s November 29, 2011, Rule 4 Order. On January 3, 2012, Johnson filed a motion to
grant his motion for reconsideration. Johnson’s motions for reconsideration do not contain any
new arguments beyond those that he has previously presented.

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Essentially, Johnson argues for reconsideration on the basis that the Court got
it wrong when conducted the preliminary review of his petition. This is not a proper basis for
reconsideration. “To prevail on a motion for reconsideration under Rule 59, the movant must
present either newly discovered evidence or establish a manifest error of law or fact. A
‘manifest error’ is not demonstrated by the disappointment of the losing party. It is the
‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). “Again we emphasize, apart from
manifest errors of law, reconsideration is not for rehashing previously rejected arguments.”
Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th Cir. 1996).
In his motion to grant his motion for reconsideration, Johnson argues that the
Court failed to recognize controlling precedent in its preliminary review of his habeas petition.
Johnson contends that this is a manifest error of law that requires reconsideration. However,
none of the cases that Johnson cites in his motion for reconsideration present legal theories that
conflict with the Court’s preliminary analysis of the merits of his petition. Johnson’s failure
to correctly interpret and apply the holdings in those cases does not establish a manifest error
of law by the Court. Therefore, Johnson’s motions for reconsideration are denied.
Motion to Disqualify
On January 23, 2012, Johnson filed a second motion to disqualify this Court.
The bulk of this motion argues that Pugh has failed to refute the arguments in Johnson’s

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motion for reconsideration and requests for admission and that those matters are therefore
deemed admitted or waived. None of Johnson’s arguments have any bearing on the Court’s
ability to decide this case impartially. Thus, they are irrelevant to his motion to disqualify.
Stripped of the extraneous contentions, the thrust of Johnson’s argument is that
the Court is ignoring Civil Local Rule 7.1(b) (E.D.Wis) as it pertains to the Pugh’s failure to
file a brief. Johnson maintains that disqualification is proper under 28 U.S.C. § 455 because
the Court is refusing to apply the local rules.
The Local Rules of this District were amended effective December 1, 2010. As
amended, Civil Local Rule 7.1(b) deals with disclosure statements that must accompany the
first appearance, pleading, petition, motion, response, notice of removal or other request
addressed to the Court and thus is not applicable to the filing of briefs. Instead, briefing of
motions (other than those for summary judgment) is set forth in Civil Local Rule 7.2 At pages
three and four of its November 29, 2011, Decision and Order, this Court explained the type
of personal bias that must be shown to prevail on a motion to disqualify. Johnson has not
raised a specter of personal bias, and therefore, his motion to disqualify is denied.
Motions for Default and Default Judgment
On February 6, and 13, 2012, Johnson filed a request for entry of default and a
motion for entry of default. On February 3, 6, and 13, 2012, Johnson filed motions for entry

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A copy of the District’s current local rules is enclosed with Johnson’s copy of this Decision and Order.

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of default judgment by the Clerk. The grounds for Johnson’s default and default judgment
motions are that Pugh has failed to respond to Johnson’s motion for reconsideration. Johnson
requests that his habeas corpus petition be granted as a result of Pugh’s failure to file a
response to his motions for reconsideration.
Pursuant to the Court’s January 30, 2012, Order, Pugh has until February 20,
2012, to file an answer to the petition. Pugh is not in default. Therefore, default has not been
entered.
However, the time has passed for Pugh to respond to Johnson’s motion for
reconsideration and to grant his motion for reconsideration. Pugh has waived his opportunity
to file any response to Johnson’s motion for reconsideration. The reconsideration motions
have been resolved in this Decision and Order, without any response by Pugh. In general,
neither the entry of default nor default judgment are appropriate based on a party’s failure to
file a response to a motion. See Fed. R. Civ. P. 55.

CONCLUSION
For the foregoing reasons, Johnson’s eight motions are denied. However,
Johnson is establishing a pattern of filing repetitious motions that also lack legal support.
While the repetition may reflect Johnson’s frustration with the timing of the Court’s rulings,
needless repetition impedes the efficient functioning of the Courts.

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The Court is fully prepared and willing to adjudicate Johnson’s habeas corpus
claims on which he has been allowed to proceed. At this time, the next step is to await Pugh‘s
answer.
Johnson is alerted to the fact that the Court’s duty to afford Johnson his day in
court is counterbalanced by the Court’s constitutional duty to curb abusive, repetitive, and
frivolous litigation. See Support Sys. Int’l v. Mack, 45 F.3d 185, 186 (7th Cir. 1995); see also
In re Davis, 878 F.2d 211, 212 (7th Cir. 1989). In appropriate cases, the Court is both
empowered and encouraged to impose sanctions for frivolous litigation. See Montgomery v.
Davis, 362 F.3d 956, 957 (7th Cir. 2004).
At this juncture, it will not exercise that authority. If, however, Johnson
continues his pattern of submitting repetitive and baseless motions, the Court may re-evaluate
how to most appropriately respond to Johnson’s consumption of limited judicial resources by
his groundless and needlessly repetitious filings. “‘Every paper filed . . . no matter how
repetitious or frivolous, requires some portion of the institution’s limited resources. A part
of the Court’s responsibility is to see that these resources are allocated in a way that promotes
the interests of justice.” Montgomery, 362 F.3d at 957 (quoting In re McDonald, 489 U.S.
180, 184 (1989)).

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.

Johnson’s motion for reconsideration (Document No. 19) is DENIED;

2.

Johnson’s motion for an order (Documents Nos. 22 & 32) are DENIED;

3.

Johnson’s motion to disqualify the judge (Document No. 26) is DENIED;

4.

Johnson’s motions for default judgment as to the Respondent (Documents

Nos. 29 & 31) are DENIED;
5.

Johnson’s motion for default (Documents Nos. 30 & 34) are DENIED;

6.

The Clerk of Court is DIRECTED to send a copy of this District’s

and

current local rules together with Johnson’s copy of this Decision and Order.
Dated at Milwaukee, Wisconsin, this 15th day of February, 2012.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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