Walker v. Wisconsin Department of Corrections et al

Filing 42

ORDER signed by Judge Lynn Adelman on 12/3/14 denying as moot 39 Motion for Order. Further amending the scheduling order as set forth herein. See order. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TONY D. WALKER,
Plaintiff,
v.

Case No. 14-CV-3

EDWARD F. WALL, et al.,
Defendants.

ORDER
Plaintiff has filed a motion for court to order counsel for defendants to provide the
court with addresses for the defendants Raemisch, Jenkins, and Reimer so the United
States Marshals Service may serve them. However, these defendants have been served
and filed their answer (along with defendants W all, Martin, and Briones) to the amended
complaint. Therefore, I will deny as moot plaintiff’s motion.
NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion for order
(Docket 39) is DENIED AS MOOT.
AMENDED SCHEDULING ORDER
To expedite a resolution of this case, the court sets forth the following scheduling
order.
NOW, THEREFORE, IT IS HEREBY ORDERED that:
1.

Discovery. All requests for discovery shall be served by a date sufficiently early so
that all discovery is completed no later than April 3, 2015.
The parties are advised that, pursuant to Rule 30(a) of the Federal Rules of Civil
Procedure, defendants may depose plaintiff and any other witness confined in a
prison upon condition that, at least fourteen days before such a deposition,
defendants serve all parties with the notice required by the rule.

2.

Dispositive Motions. Motions to dismiss (Rule 12 of the Federal Rules of Civil
Procedure and Civil Local Rule 7) and motions for summary judgment (Rule 56 of
the Federal Rules of Civil Procedure and Civil Local Rule 56), together with
supporting briefs, are to be filed no later than May 4, 2015. Copies of Rule 12, Rule
56, and Civil Local Rules 7 and 56 (E.D. Wis.) are included with this order.
A party opposing a motion for summary judgment must file a response “within 30
days of service of the motion.” Civil Local Rule 56(b)(2) (E.D. Wis.). Civil Local
Rule 56(b)(2) sets forth the documents and information that must be included in a
response to a motion for summary judgment. Defendants must provide a full copy
of Civil Local Rule 56(b) to a pro se plaintiff with any motion for summary judgment
they file.
If a party files a motion for summary judgment, Rule 56 requires a district court to
grant summary judgment “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).

3.

Compliance with Court Rules and Orders. Plaintiff is further advised that failure
to make a timely submission or otherwise comply with the court’s orders may result
in the dismissal of this action for failure to prosecute.

4.

Service. Plaintiffs who are inmates at Green Bay Correctional Institution and
Waupun Correctional Institution must submit all correspondence and case filings
to institution staff, who will scan and e-mail documents to the court pursuant to the
Prisoner E-Filing Program. No copies are required to be mailed to either the court
or the defendant(s). All defendant(s) will be served electronically through the court's
electronic case filing system.
Plaintiffs who are inmates at all other prison facilities must submit the original
document for each filing to the court to the following address: Clerk of Court, United
States District Court for the Eastern District of Wisconsin, 517 E. Wisconsin Ave. Rm. 362, Milwaukee, WI 53202. As each filing will be electronically scanned and
entered on the docket upon receipt by the clerk, the plaintiff need not mail copies to
the defendant(s). All defendant(s) will be served electronically through the court's
electronic case filing system.
Dated at Milwaukee, W isconsin, this 3rd day of December, 2014.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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Federal Rule of Civil Procedure 12. Defenses and Objections: When and How Presented; M otion for Judgment
on the Pleadings; Consolidating M otions; W aiting Defenses; Pretrial Hearing
(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive
pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within
90 days after it was sent to the defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading
that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order
specifies a different time.
(2) United States and Its Agencies, Officers, or Em ployees Sued in an Official Capacity. The United States, a
United States agency, or a United States officer or employee sued only in an official capacity must serve an answer
to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
(3) United States Officers or Em ployees Sued in an Individual Capacity. A United States officer or employee sued
in an individual capacity for an act or omission occurring in connection with duties performed on the United States'
behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or
employee or service on the United States attorney, whichever is later.
(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as
follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served
within 14 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days
after the more definite statement is served.
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive
pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;

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(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a
pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial
any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or
objections in a responsive pleading or in a motion.
(c) M otion for Judgment on the Pleadings. After the pleadings are closed--but early enough not to delay trial--a
party may move for judgment on the pleadings.
(d) Result of Presenting M atters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.
(e) M otion for a M ore Definite Statement. A party may move for a more definite statement of a pleading to which
a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a
response. The motion must be made before filing a responsive pleading and must point out the defects complained
of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days
after notice of the order or within the time the court sets, the court may strike the pleading or issue any other
appropriate order.
(f) M otion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21
days after being served with the pleading.
(g) Joining M otions.
(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
(2) Lim itation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under
this rule must not make another motion under this rule raising a defense or objection that was available to the party
but omitted from its earlier motion.
(h) W aiving and Preserving Certain Defenses.
(1) When Som e Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

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(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by
Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.
(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7)--whether made in a pleading
or by motion--and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a
deferral until trial.
CREDIT(S)
(Amended December 27, 1946, effective March 19, 1948; January 21, 1963, effective July 1, 1963; February 28,
1966, effective July 1, 1966; March 2, 1987, effective August 1, 1987; April 22, 1993, effective December 1, 1993;
April 17, 2000, effective December 1, 2000; April 30, 2007, effective December 1, 2007; March 26, 2009, effective
December 1, 2009.)

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Federal Rule of Civil Procedure 56. Summary Judgment
(a) M otion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or
denying the motion.
(b) Time to File a M otion. Unless a different time is set by local rule or the court orders otherwise, a party may file
a motion for summary judgment at any time until 30 days after the close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by Adm issible Evidence. A party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible
in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider
other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.
(d) W hen Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails
to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;

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(3) grant summary judgment if the motion and supporting materials--including the facts considered
undisputed--show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the M otion. After giving notice and a reasonable time to respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may
not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it
may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in
dispute and treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is
submitted in bad faith or solely for delay, the court--after notice and a reasonable time to respond--may order the
submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An
offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
CREDIT(S)
(Amended December 27, 1946, effective March 19, 1948; January 21, 1963, effective July 1, 1963; March 2, 1987,
effective August 1, 1987; April 30, 2007, effective December 1, 2007; March 26, 2009, effective December 1, 2009;
April 28, 2010, effective December 1, 2010.)

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Civil Local Rule 7. Form of Motions and Other Papers
(a) Form of Motion and Moving Party’s Supporting Papers. Every motion must state the
statute or rule pursuant to which it is made and, except for those brought under Civil L. R. 7(h)
(Expedited Non-Dispositive Motion Practice), must be accompanied by:
(1) a supporting memorandum and, when necessary, affidavits, declarations, or other
papers; or
(2) a certificate stating that no memorandum or other supporting papers will be filed.
(b) Non-Moving Party’s Response. For all motions other than those for summary judgment or
those brought under Civil L. R. 7(h) (Expedited Non-Dispositive Motion Practice), any
memorandum and other papers in opposition must be filed within 21 days of service of the
motion.
(c) Reply. For all motions other than those for summary judgment or those brought under Civil
L. R. 7(h) (Expedited Non-Dispositive Motion Practice), the moving party may serve a reply
memorandum and other papers within 14 days from service of the response memorandum.
(d) Sanction for Noncompliance. Failure to file either a supporting memorandum or other
papers, or a certificate of counsel stating that no memorandum or other supporting papers will be
filed, is sufficient cause for the Court to deny the motion. Failure to file a memorandum in
opposition to a motion is sufficient cause for the Court to grant the motion. The Court also may
impose sanctions under General L. R. 83(f).
(e) Oral Argument. The Court will hear oral argument at its discretion.
(f) Length of Memoranda. Subject to the limitations of Civil L. R. 7(h) (Expedited NonDispositive Motion Practice) and Civil L. R. 56 (Summary Judgment Motion Practice), the
principal memorandum in support of, or in opposition to, any motion must not exceed 30 pages
and reply briefs must not exceed 15 pages (excluding any caption, cover page, table of contents,
table of authorities, and signature block). No memorandum exceeding the page limitations may
be filed unless the Court has previously granted leave to file an oversized memorandum.
(g) Modification of Provisions in Particular Cases. The Court may provide by order or other
notice to the parties that different or additional provisions regarding motion practice apply.
(h) Expedited Non-Dispositive Motion Practice.
(1) Parties in civil actions may seek non-dispositive relief by expedited motion. The
motion must be designated as a “Civil L. R. 7(h) Expedited Non-Dispositive Motion.”
The Court may schedule the motion for hearing or may decide the motion without
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hearing. The Court may designate that the hearing be conducted by telephone conference
call. The Court may order an expedited briefing schedule.
(2) The motion must contain the material facts, argument, and, if necessary, counsel’s
certification pursuant to Civil L. R. 37. The motion must not exceed 3 pages excluding
any caption and signature block. The movant may not file a separate memorandum with
the motion. The movant may file with the motion an affidavit or declaration for purposes
of (1) attesting to facts pertinent to the motion and/or (2) authenticating documents
relevant to the issue(s) raised in the motion. The movant’s affidavit or declaration may
not exceed 2 pages. The respondent must file a memorandum in opposition to the motion
within 7 days of service of the motion, unless otherwise ordered by the Court. The
respondent’s memorandum must not exceed 3 pages. The respondent may file with its
memorandum an affidavit or declaration for purposes of (1) attesting to facts pertinent to
the respondent’s memorandum and/or (2) authenticating documents relevant to the
issue(s) raised in the motion. The respondent’s affidavit or declaration may not exceed 2
pages. No reply brief is permitted absent leave of Court.
(3) The provisions of subsection (h) do not apply to 42 U.S.C. § 1983 actions brought by
incarcerated persons proceeding pro se.
(i) Leave to file paper. Any paper, including any motion, memorandum, or brief, not authorized
by the Federal Rules of Civil Procedure, these Local Rules, or a Court order must be filed as an
attachment to a motion requesting leave to file it. If the Court grants the motion, the Clerk of
Court must then file the paper.
(j) Citations.
(1) With the exception of the prohibitions in Seventh Circuit Rule 32.1, this Court does
not prohibit the citation of unreported or nonprecedential opinions, decisions, orders,
judgments, or other written dispositions.
(2) If a party cites an unreported opinion, decision, order, judgment or other written
disposition, the party must file and serve a copy of that opinion, decision, order,
judgment, or other written
disposition.

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Civil Local Rule 56. Summary Judgment.
(a) Pro Se Litigation.
(1) If a party is proceeding pro se in civil litigation and the opposing party files a
motion for summary judgment, counsel for the movant must comply with the following
procedure:
(A) The motion must include a short and plain statement that any factual
assertion in the movant’s affidavit, declaration, or other admissible
documentary evidence will be accepted by the Court as being true unless the
party unrepresented by counsel submits the party’s own affidavit, declaration,
or other admissible documentary evidence contradicting the factual assertion.
(B) In addition to the statement required by Civil L. R. 56(a)(1)(A), the
text to Fed. R. Civ. P. 56 (c),(d), and (e), Civil L. R. 56(a), Civil L. R. 56(b), and
Civil L. R. 7 must be part of the motion.
(2) This procedure also applies to motions to dismiss brought pursuant to Fed. R.
Civ. P. 12(b)(6) or motions for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c) where matters outside the pleadings are presented to the Court.
(b) Additional Summary Judgment Procedures. Motions for summary judgment must
comply with Fed. R. Civ. P. 56 and Civil L. R. 7. In addition, with the exception of Social Security
reviews, other actions for review of administrative agency decisions, and other actions in which a
judge relieves the parties of this Rule’s requirements, the following must be met:
(1) Moving Party’s Principal Materials in Support of Motion. With each
motion for summary judgment, the moving party must file:
(A) a memorandum of law;
(B) a statement setting forth any material facts to which all parties
have stipulated;
(C) a statement of proposed material facts as to which the moving party
contends there is no genuine issue and that entitle the moving party to a judgment
as a matter of law;
(i)
the statement shall consist of short numbered paragraphs,
including within each paragraph specific references to the affidavits,
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declarations, parts of the record, and other supporting materials relied
upon to support the fact described in that paragraph;
(ii)
a moving party may not file more than 150 separately
numbered statements of fact;
(iii) failure to submit such a statement constitutes grounds for
denial of the motion; and
(D) any affidavits, declarations, and other materials referred to in Fed. R.
Civ. P. 56(c).
(ii) Opposing Party’s Materials in Opposition. Each party opposing a
motion for summary judgment must file within 30 days of service of the motion and the
materials required by subsection (b)(1), above:
(A) a memorandum of law;
(B) a concise response to the moving party’s statement of facts that must
contain:
(i) a reproduction of each numbered paragraph in the moving
party’s statement of facts followed by a response to each paragraph,
including, in the case of any disagreement, specific references to the
affidavits, declarations, parts of the record, and other supporting materials
relied upon, and
(ii)
a
statement,
consisting of short numbered
paragraphs, of any additional facts that require the denial of summary
judgment, including references to the affidavits, declarations, parts of
the record, and other supporting materials relied upon to support the facts
described in that paragraph. A non-moving party may not file more
than 100 separatelynumbered statements of additional facts; and
(C) any opposing affidavits, declarations, and other materials referred to
in Fed. R. Civ. P. 56(c).
(3) Moving Party’s Materials in Reply. A moving party may file within 14 days
of the service of the opposing party’s materials under subsection (b)(2), above:
(A) a reply memorandum;
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(B) a reply to any additional facts submitted by the opposing party
pursuant to subsection (b)(2) above, in the form prescribed in section (b)(2)(B)(i)
above; and
(C) any affidavits, declarations, and other materials referred to in Fed. R.
Civ. P. 56(c) submitted in reply.
(4) Effect of Uncontroverted Statements of Fact. The Court will deem
uncontroverted statements of material fact admitted solely for the purpose of deciding
summary judgment.
(5) Stipulated Facts. Parties are encouraged to stipulate to facts. Facts so
stipulated will not count against any party’s allotment of proposed facts and do not
require references to evidentiary support.
(6) Citations to Facts in Memoranda. Assertions of fact in the parties’
supporting memoranda must refer to the corresponding numbered paragraph of the
statement of facts, statement of additional facts, or statement of stipulated facts.
(7) Prior Leave of Court Required to Increase the Number of Statements of
Fact or Statements of Additional Fact. A party may not file any proposed statements of
material fact or statements of additional fact in excess of the limit set forth in this rule
unless the Court previously has granted leave upon a showing that an increase is
warranted.
(8) Length of Memoranda.
(A) A principal memorandum in support of, or opposition to, summary
judgment must not exceed 30 pages and a reply memorandum must not exceed 15
pages (excluding any caption, cover page, table of contents, table of authorities, and
signature block).
(B) No memorandum exceeding the page limitations may be filed
unless the Court previously has granted leave to file an oversized memorandum.
(9) Collateral Motions. Collateral motions, such as motions to strike, are
disfavored.

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