Sherman v. Jess et al

Filing 43

DECISION AND ORDER signed by Judge Lynn Adelman on 11/24/14 denying 20 Motion to Appoint Counsel; withdrawing 22 Motion to Amend/Correct; denying 24 Motion for Extension of Time; granting 25 Motion to Withdraw Motion; denying 26 Motion to Appoint Counsel; denying 28 Motion to Amend/Correct; granting 31 Motion for Leave to File Excess Pages. Further ordering the defendants to file a response to plaintiffs motion to compel on or before December 12, 2014. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MITCHELL J. SHERMAN,
Plaintiff,
v.

Case No. 13-CV-1355

CATHY JESS, WARDEN PAUL KEMPER,
JASON ALDANA, LUCAS WEBER,
MICHAEL WITT, and KATHLEEN NABRZYSKI,
Defendants.

DECISION AND ORDER
Motions to Appoint Counsel
Plaintiff has filed two motions to appoint counsel (Docket 20, 26).1 Plaintiff contends
that his claims, which includes a claim under the Religious Land Use and Institutionalized
Persons Act (RLUIPA), are complex and that a lawyer would better comprehend them, citing
McEachin v. McGuinnis, 357 F.3d 197, 205 (2d Cir. 2004) (district court was to consider
recruiting counsel for pro se prisoner given possibility that remaining First Amendment claim
might be amended or construed to state claim under RLUIPA, a statute that might present
complex legal issues). He also asserts that he is distinctly disadvantaged in conducting
discovery due to his incarceration. Plaintiff further states that he lacks the ability and
experience to handle a jury trial.
The court has discretion to recruit counsel to represent a litigant who is unable to
afford one in a civil case. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. §

1

The motions contain the same arguments. I will therefore deny as moot the former
motion and address the latter motion. I also note that plaintiff did not sign the first motion.
See Fed. R. Civ. P. 11(a).

1915(e)(1); Ray v. W exford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). As
a threshold matter, litigants must make a reasonable attempt to secure private counsel on
their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). If the plaintiff makes a
reasonable attempt to secure counsel, the court must examine “whether the difficulty of the
case – factually and legally – exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 781 F.3d at 696 (citing Pruitt, 503 F.3d at 655). This inquiry
focuses not only the plaintiff’s ability to try his case, but also includes other “tasks that
normally attend litigation” such as “evidence gathering” and “preparing and responding to
motions.” Id.
Here, plaintiff has satisfied the threshold requirement of trying to find an attorney on
his own. He claims (RLUIPA, First Amendment free exercise, Fourteenth Amendment
equal protection, Eighth Amendment conditions of confinement) are against six defendants
and are based on two stays of approximately two weeks each in temporary lock-up at
Racine Correctional Institution. Plaintiff has demonstrated an impressive ability to engage
in pretrial discovery and otherwise litigate his case so far. He recently filed a motion to
compel discovery. Plaintiff’s filings demonstrate that he is capable of proceeding on his own
at this time. Thus, I will deny his motion for counsel.
Motion to Amend the Complaint
On October 15, 2014, plaintiff filed a motion to amend the complaint along with a
proposed amended complaint (Docket 28).2 He seeks to add four defendants – Nancy

2

Previously, plaintiff filed a motion to amend the complaint (Docket 22) but he
subsequently filed a motion to withdraw that motion (Docket 25). I will grant the motion to
withdraw.
2

Padgett, Brenda M. LaBelle, John Paquin, Robert Humphreys – who were allegedly involved
in his claims.

Plaintiff alleges that Padgett and LaBelle are liable based on their

involvement in the inmate complaint process, that former W arden Paquin is liable based on
his position as warden, and that Humphreys is liability based on his position as supervisor
to defendant Kemper. Defendants have not filed a response to the motion.
Leave to amend a pleading should be freely given “when justice so requires.” See
Fed. R. Civ. P. 15(a)(2). The decision on whether to allow the amendment is within the
discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962). Reasons for
denying a motion to amend include “undue delay, bad faith, dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, or futility of the
amendment.” Id.
Section 1983 limits liability to public employees “for their own misdeeds, and not for
anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). Top-level
administrators are entitled to relegate to others the primary responsibility for specific prison
functions without becoming vicariously liable for the failings of their subordinates. Id.
Likewise, those who review administrative decisions of others, such as prison grievance
officers, are not liable either. Id.; George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007)
(“Ruling against a prisoner on an administrative complaint does not cause or contribute to
the [constitutional] violation.”); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006). Here,
allowing plaintiff to amend his complaint would be futile because the four individuals
identified in his amended complaint were not personally involved in his claims. Therefore,
the motion will be denied.

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Discovery
On September 11, 2014, plaintiff filed a motion for extension of time to conduct
discovery (Docket 24). He asserts that an extension of time equal to the first time limit
should be sufficient. According to plaintiff, based on discovery he has received thus far, he
will seek add new defendants and will need to conduct discovery as to the new defendants.
However, as set forth herein, plaintiff was not permitted to add new defendants. Thus, his
motion will be denied.
Plaintiff has also filed a motion to compel discovery (Docket 27). Defendants have
not filed a response to the motion.3 They should file a response by December 12, 2014.
Defendants’ Motion for Summary Judgment
Defendants filed a motion for summary judgment on October 20, 2014 (Docket 30).
They also filed a motion to exceed page limitation (Docket 31) in which they assert that they
need more than the 30 pages allowed by Civil Local Rule 56(b)(8) in order to fully present
their argument. Upon due consideration, I will grant this motion.
Lastly, plaintiff has filed a request to deny or stay summary judgment until he has
obtained the necessary discovery from defendants to oppose their motion. Plaintiff need
not respond to defendants’ motion for summary judgment until his motion to compel is
resolved and discovery is completed.
THEREFORE, IT IS ORDERED that plaintiff’s motion for appoint counsel (Docket
# 20) is DENIED.

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Defendants did file an affidavit on October 16, 2014, demonstrating that the parties
have engaged in discovery.
4

IT IS FURTHER ORDERED that plaintiff’s motion to amend/correct complaint
(Docket # 22) is WITHDRAWN.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time (Docket # 24)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to withdraw motion to
amend/correct complaint (Docket # 25) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket # 26)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to amend/correct complaint
(Docket # 28) is DENIED.
IT IS FURTHER ORDERED that defendants’ motion for leave to file excess pages
(Docket # 31) is GRANTED.
IT IS FURTHER ORDERED that defendants file a response to plaintiff’s motion to
compel on or before December 12, 2014.
Dated at Milwaukee, W isconsin, this 24th day of November, 2014.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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