Jackson v Hoftiezer et al

Filing 97

ORDER signed by Judge Lynn Adelman on 4/2/13 denying 53 Motion for Order; denying without prejudice 55 Motion to Appoint Counsel; denying 60 Motion for Order; granting 62 Motion for Extension of Time; granting 64 Motion to Compel; den ying 87 Motion to Strike; denying 90 Motion for Extension of Time. Further, defendants shall respond to the interrogatories at Docket 48 through 52 and the request for production of documents at Docket 58 , or file a letter advising the court of when they responded by 4/30/13. Plaintiff may supplement his response to defendants motion for summary judgment or file his own motion for summary judgment by 5/31/13.(cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEITH JACKSON,
Plaintiff,
v.

Case No. 12-CV-0058

DR. SCOTT HOFTIEZER, BETH DITTMANN,
RN JEN KOEHLER, RN JANE DOE, and SGT. HELLER,
Defendants.

ORDER
This matter is before me on a number of motions.
I entered a Scheduling Order on May 24, 2012, setting forth a discovery cutoff of
September 28, 2012, and a dispositive motion deadline of October 29, 2012. On August
15, 2012, I resolved several motions from plaintiff, including two motions to compel and a
motion to appoint counsel. On September 17, 2012, plaintiff filed a motion for leave to
conduct a written deposition of the defense and other important witness (Docket #53), as
well as another motion to appoint counsel (Docket #55). Plaintiff asks for leave to take a
deposition under Federal Rule of Civil Procedure 31 and wants the court to arrange it for
him. Plaintiff asserts that he needs this deposition for trial preparation, but he does not
specify exactly who he wants to depose, what information he is seeking for trial
preparation, or why he could not obtain the information he seeks through the use of other
methods of discovery available to him, such as interrogatories, requests for admissions
and requests for production of documents. Also, it is unclear whether plaintiff needed leave
from the court. If he was able to pay for the depositions and the conditions in Rule 31(a)(2)
did not apply, he could simply arrange them pursuant to Rule 31(a)(1). And finally, this
motion was filed less than two weeks before the close of discovery, without sufficient time

to take the depositions before discovery closed. For these reasons, I will deny plaintiff’s
motion for leave to conduct a written deposition.
I also note that it appears plaintiff does not fully understand how Rule 31 operates.
Arranging for a deposition officer (usually a stenographer or court reporter) to meet with
defendants and others and conduct the depositions by written questions would involve
considerable expense and time. This is not an expense that the court would pay. See, e.g.,
McNeil v. Lowery, 831 F.2d 1368, 1373 (7th Cir.1987) (holding that although the
constitution guarantees a right of access to the courts, it does not require the government
to pay witness fees so that an indigent plaintiff can present his case fully to the court).
In his motion to appoint counsel, plaintiff asks for counsel to advise him when
needed and for trial purposes. He contends that being in prison has limited his ability to
investigate this case and talk to witnesses. Once again, plaintiff has shown his attempts
to secure counsel on his own, but I still conclude that he is competent to litigate this case
himself. See Pruitt v. Mote, 503 F.3d 647, 650–55 (7th Cir. 2007); Santiago v. Walls, 599
F.3d 749, 761–62 (7th Cir. 2010).
On October 18, 2012, plaintiff filed three more motions. In a motion to reopen and
allow discovery procedure (Docket #60), plaintiff indicates that he recently discovered
witnesses not in his complaint. He would like to serve discovery requests on these new
witnesses. Also, he has learned about Rule 36 Requests for Admissions and wants to
serve some requests for admissions on defendants and possibly witnesses. First, requests
for admissions may only be served on parties. Fed. R. Civ. P. 36(a). Second, after the
close of discovery is too late to propound open ended discovery on new witnesses. This
motion will be denied.

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However, I will grant plaintiff’s motion for an extension of time for summary judgment
and his motion to compel. I want to make sure that plaintiff had sufficient opportunity to
conduct discovery so that he can continue to prosecute this case effectively. In his motion
for an extension of time for summary judgment (Docket #62), plaintiff asserts that he needs
responses from the court to his motions and responses from defendants to his discovery
requests before he can file a motion a motion for summary judgment. In his motion to
compel (Docket #64), plaintiff asks me to compel defendants to fully answer the
interrogatories he served on September 12, 2012 (Docket #48-52), and the request served
on September 27, 2012 for production of the CNA and nursing staff schedule for October
20-21, 2008, and November 2008, with the time the employees arrived at and departed
from the prison (Docket #58). Apparently defendants simply did not respond to these
discovery requests. Nor did they respond to plaintiff’s motions.
I anticipate that, had they responded, defendants would have argued that these
discovery requests were sent too late to be answered by the close of discovery, or perhaps
that the total number of interrogatories exceeded the number allowed. Additionally, they
might have challenged plaintiff’s motion to compel because it does not contain the required
certification of a good faith attempt to resolve the dispute before filing the motion. However,
defendants made none of these arguments, which effectively left plaintiff in the dark as to
why his discovery requests were not answered. I will not allow plaintiff to serve additional
discovery requests after the discovery deadline, but I will ensure that he receives answers
to the discovery requests he served in good faith prior to the deadline.
On or before Tuesday, April 30, 2013, defendants shall file a letter advising me of
when they responded to the interrogatories at Docket #48–52 and the request for

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production of documents at Docket #58. If they have not already responded, they shall do
so by that date.
Defendants filed their motion for summary judgment on October 29, 2012. Plaintiff
filed his responsive documents on December 5, 2012. On December 11, 2012, defendants
submitted a motion to strike plaintiff’s responsive filings and award summary judgment to
defendants. They contend that plaintiff’s response consisted of eleven separate documents
that are so incomprehensible that defendants cannot formulate a meaningful reply. Plaintiff
responded to this motion on December 26, 2012. Plaintiff also submitted documents on
February 4, 2013, and March 4, 2013, including an unsigned motion for extension of time.
Because this motion does not comply with Federal Rule of Civil Procedure 11(a), which
requires a signature on every written motion, it will be denied. In a letter received March
14, 2013, plaintiff clarified that the sworn document filed at Docket #94 is his response to
defendants’ proposed findings of fact. Although filed later, this document is organized and
addresses each of defendants’ proposed findings of fact. I will deny defendants’ motion to
strike and consider Docket #94 as part of plaintiff’s response to defendants’ motion for
summary judgment.
Additionally, I will give plaintiff until Friday, May 31, 2013, to supplement his
response to defendants’ motion for summary judgment and/or file his own motion for
summary judgment. Defendants’ deadlines to reply and/or respond will be based on Civil
Local Rule 56(b) (E.D. Wis.), as will plaintiff’s deadline to reply, if applicable.
THEREFORE, IT IS ORDERED that plaintiff’s motion for leave to conduct a written
deposition (Docket #53) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket #55)
is DENIED WITHOUT PREJUDICE.
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IT IS FURTHER ORDERED that plaintiff’s motion to reopen and allow discovery
(Docket #60) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time for summary
judgment (Docket #62) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to compel discovery (Docket #64)
is GRANTED.
IT IS FURTHER ORDERED that on or before Tuesday, April 30, 2013, defendants
shall respond to the interrogatories at Docket #48–52 and the request for production of
documents at Docket #58, or file a letter advising the court of when they responded.
IT IS FURTHER ORDERED that defendants’ motion to strike (Docket #87) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s unsigned motion for extension of time
(Docket #90) is DENIED.
IT IS FURTHER ORDERED that on or before Friday, May 31, 2013, plaintiff may
supplement his response to the defendants’ motion for summary judgment and/or file his
own motion for summary judgment. Defendants’ deadlines to reply and/or respond will be
based on Civil Local Rule 56(b) (E.D. Wis.).
Dated at Milwaukee, Wisconsin, this 2nd day of April 2013.

s/ Lynn Adelman
LYNN ADELMAN
District Judge

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