Famous v. Zohia et al

Filing 95

ORDER signed by Judge Rudolph T. Randa on 6/25/2015. 92 Famous' MOTION to Appoint Counsel DENIED; 92 Famous' MOTION for Reconsideration DENIED. 93 Famous' MOTION for Physical Examination DENIED. By 7/6/2015 Famous to inform the Court whether he wants Attorney Newbold to respond to defendants' summary judgment motion. (cc: all counsel, via mail to Ronnie Famous at Wisconsin Resource Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONNIE L. FAMOUS,
Plaintiff,
-vs-

Case No. 13-CV-195

DOE ZOHIA, et al.,
Defendants.

DECISION AND ORDER
On May 28, 2015, the plaintiff filed a “motion to reconsider motion
to terminate counsel and appoint new counsel” (ECF No. 92).

By this

motion, which was prepared by another inmate but signed by the plaintiff,
the plaintiff asserts that he needs a new attorney to conduct discovery and
respond to the defendants’ motions for summary judgment. The plaintiff
asserts that his pro bono attorney, Mr. Joseph Newbold, told him that he is
going to file a response brief stating that the Court should change the law.
According to the plaintiff, the law does not need to be changed but, rather,
he needs a new attorney to conduct discovery and respond to the
defendants’ motions for summary judgment. Lastly, the plaintiff states
that he cannot litigate on his own due to his mental illness and that the
inmate assisting him is transferring soon and will no longer be able to help
him.

By way of background, on May 20, 2015, the Court held a telephonic
status conference regarding Attorney Newbold’s motion to withdraw as pro
bono counsel for the plaintiff, and the plaintiff’s motion for a new attorney.
Attorney Newbold’s motion charged that he and the plaintiff had an
irreconcilable dispute regarding the strategy for litigating the case. In the
plaintiff’s motion for a new attorney, he stated that Attorney Newbold had
“not done anything in this case since being appointed a year and a half
ago[.]”

(ECF No. 88.)

Specifically, the plaintiff stated that Attorney

Newbold never amended the complaint, took any depositions, or named any
expert witnesses. Attorney Newbold filed a letter response in which he
“strongly

disagree[d]

with

Mr.

Famous’

characterization

of

my

representation” but stated that “due to privilege concerns I am precluded
from discussing the specifics of my disagreement and my communications
with Mr. Famous.” (ECF No. 89.)1
Following discussion at the status conference, the Court held
Attorney Newbold’s motion to withdraw in abeyance pending resolution of
the defendants’ motions for summary judgment, denied the plaintiff’s
Defendant Dr. James Richter filed a response to Attorney Newbold’s motion to
withdraw in which he stated that he did not oppose the withdrawal. Defendant Richter
also stated: “It is this defendant’s position and observation that Attorney Newbold has
done the very best he could, under circumstances that, at best, were extremely difficult,
and more likely, essentially impossible to handle.” (ECF No. 87.)
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motions to appoint new counsel, and denied as moot the plaintiff’s motion
to stay.

The Court ordered the plaintiff to respond to the defendants’

motions for summary judgment by July 20, 2015, specifically directing
Attorney Newbold to file a response by July 20, 2015, and also advising the
plaintiff that he could file his own response by July 20, 2015. Lastly, the
Court directed the defendants to file reply briefs by August 3, 2015.
Given this background, the Court will now address the plaintiff’s
instant motion to reconsider motion to terminate counsel and appoint new
counsel. The question whether to permit a substitution of counsel rests
within the sound discretion of the district court. Lewis v. Lane, 816 F.2d
1165, 1169 (7th Cir. 1987) (reversing magistrate judge’s grant of summary
judgment for § 1983 defendants and against inmate plaintiff on basis that
substitute counsel should be appointed and given the opportunity to file
counter-affidavits in opposition to defendants’ summary judgment motion).
The pro bono attorney in Lewis failed to accept calls from his client who
was incarcerated, did not visit the prison, never got in touch with his other
client (he represented two prisoners), and did not file an amended
complaint. Id. at 1169-70. At a hearing on the motion to substitute, the
pro bono attorney told the magistrate judge that “he had not yet reviewed
the pleadings and would need more time to file an amended complaint but
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that he did not know when he would be able to find the time in the future
to devote to this case.” Id. at 1170. The court of appeals determined that,
when ruling on the motion for summary judgment, the magistrate judge
“was aware that no counter-affidavits had been filed, and in light of [the
attorney’s] track record, he should have realized that [the attorney’s]
failure to file affidavits was very likely due to the attorney’s continued lack
of diligence rather than a strategic decision.”

Id.; see also Harris v.

Fleming, 993 F.2d 1549, *4 (7th Cir. 1993) (remanding to district court for
appointment of substitute counsel after original pro bono counsel failed to
respond to summary judgment and nothing in record suggested that
counsel took any action to further client’s claim).
In this case, the plaintiff charges that Attorney Newbold has not
done anything on his case. Attorney Newbold denies that (as does counsel
for defendant Dr. Richter).

At the May 20, 2015, telephonic status

conference, Attorney Newbold stated that he and the plaintiff had a
fundamental disagreement about the way to proceed in the case,
specifically with regard to his response to the defendants’ motions for
summary judgment. Attorney Newbold also disagreed with the plaintiff’s
contention that he did not conduct discovery and stated that he had the
plaintiff’s medical record which he had presented to the plaintiff.
-4-

The

Court recommended that the plaintiff let Attorney Newbold respond to
summary judgment for him, and Attorney Newbold agreed to do so. The
Court also stated that the plaintiff could file his own summary judgment
response if he wanted. Additionally, the Court advised the plaintiff that it
would not recruit another attorney to represent him.2
Attorney Newbold’s representations reveal that his decisions in this
case relate to strategy, not lack of diligence. However, it is apparent that
Attorney Newbold and the plaintiff disagree on how proceed with this case.
Although the Court previously encouraged the plaintiff to let Attorney
Newbold stay on long enough to respond to summary judgment, the Court
will not force the plaintiff (or Attorney Newbold) to do so. Currently, the
Court’s order of May 20, 2015, that Attorney Newbold respond to summary
judgment by July 20, 2015, is in effect.3 If the plaintiff does not want
Attorney Newbold to file a response to summary judgment, he should
inform the Court by July 6, 2015, and the Court will then grant Attorney
Newbold’s motion to withdraw. However, the plaintiff is advised that the

The Status Conference Call Minutes do not reflect any statements from the
conference. Rather, these statements are taken from the Court’s notes which were
taken during the telephonic status conference. The status conference was not recorded.
2

As indicted, that order also stated that the plaintiff could file his own response
to summary judgment.
3

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Court is unable to recruit a new pro bono attorney to represent him.4
The parties are reminded that the plaintiff’s response to the
defendants’ motions for summary judgment is due by July 20, 2015, and
the defendants’ replies are due by August 3, 2015. These deadlines remain
in effect whether or not Attorney Newbold stays on the case. No further
extensions will be granted.
Also on May 28, 2015, the plaintiff filed a motion for physical
examination pursuant to Federal Rule of Civil Procedure 35(a) (ECF No.
93). However, the deadline for the completion of discovery was November
11, 2014. The Court will not reopen discovery at this stage.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion to appoint new counsel
(ECF No. 92) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for
reconsideration (ECF No. 92) is DENIED.
IT IS FURTHER ORDERED that the plaintiff shall inform the
Court by July 6, 2015, whether he still wants Attorney Newbold to
Throughout the course of this case, the Court has contacted seven attorneys,
including Attorney Newbold, to represent the plaintiff. See Nwanze v. Phillip Morris,
Inc., 100 F. Supp. 2d 215, 218 n.3 (S.D. N.Y. 2000) (noting that court contacted six
attorneys but was unable to find attorney acceptable to the plaintiffs and willing to
represent them).
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respond to the defendants’ motions for summary judgment.
IT IS FURTHER ORDERED that the plaintiff’s motion for
physical examination (ECF No. 93) is DENIED.
Dated at Milwaukee, Wisconsin, this 25th day of June, 2015.

BY THE COURT:

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

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