Banks v. Patton et al

Filing 103

DECISION and ORDER signed by Judge Pamela Pepper on 12/1/2015 DENYING 84 Motion to Compel; DENYING 84 Motion for Sanctions; DENYING 88 Motion to Withdraw ECF Submissions; DENYING 93 Motion to Withdraw Motion to Compel as Moot; and Setting January 14, 2016 as the Deadline for Defendants to Indicate Whether They Agree to Participate in Mediation. (cc: all counsel and copy sent to the plaintiff by US Mail on December 1, 2015.) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TERENCE BANKS,
Plaintiff,
v.

Case No. 14-cv-381-pp

LESLIE PATTON, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO COMPEL AND FOR SANCTIONS (DKT. NO. 84), DENYING THE
PLAINTIFF’S MOTION TO WITHDRAW HIS MOTION TO COMPEL AS MOOT
(DKT. NO. 93), DENYING THE DEFENDANTS’ MOTION TO WITHDRAW ECF
SUBMISSIONS (DKT. NO. 88), AND SETTING A DEADLINE FOR
DEFENDANTS TO INDICATE WHETHER THEY AGREE TO PARTICIPATE IN
MEDIATION
______________________________________________________________________________
I.

The Plaintiff’s Motion to Compel
On November 9, 2015, plaintiff Terence Banks filed a motion to compel

discovery (seeking the full name of defendant Jane Doe), and asking the court
to impose sanctions. Dkt. No. 84. In his motion, the plaintiff outlined his
attempts to obtain information about Jane Doe’s identity, and explained that,
in a final good faith attempt to obtain this information, he had written a letter
to Jane Doe’s counsel, informing him that if he did not provide the plaintiff
with the requested information, the plaintiff would enlist the assistance of the
court. See Dkt. No. 74. On October 26, Jane Doe’s counsel sent the plaintiff a
letter stating, “Please see the amended Answer filed by these defendants.” Dkt.
No. 86-1. At that time, however, the defendants had not filed an amended

1 

answer; they did not amend their answer until November 6, 2015. See Dkt. No.
81.
It is unclear to the court (just as it was unclear to the plaintiff) why Jane
Doe’s counsel did not simply tell the plaintiff, in the October 26 letter, Jane
Doe’s real name, given that he was taking the time to respond. It is also
unclear to the court why Jane Doe’s counsel directed the plaintiff to look at a
pleading that had not yet been filed. As noted above, Jane Doe’s counsel did
not file the amended complaint until November 6, 2015 (Dkt. No. 81), more
than a week after his letter to the plaintiff, and, according to the certificate of
service, he did not mail the amended answer to the plaintiff until November 9,
2015. Dkt. No. 82. In fact, according to the plaintiff, as of November 17, 2015,
he still had not received a copy of the amended complaint. Dkt. No. 93. This
chain of events appears to constitute an effort to frustrate the pro se plaintiff’s
legitimate attempts to obtain this basic and important information.
In any event, the plaintiff acknowledges in his November 18 motion to
withdraw the motion to compel that he now has the information he sought. See
Dkt. No. 93. Thus, the plaintiff’s motion to compel is moot.1 Nonetheless, the
court reminds the parties—particularly, in light of the above, the defendants—
that they should strive to work with one another in good faith during the
remainder of the discovery process, as the federal rules, and this court’s rules,

1

 On November 18, 2015, the plaintiff filed a motion to withdraw his motion to

compel. Dkt. No. 93. To maintain the integrity of the docket, the court does not
allow parties to withdraw or strike filings. The court denies the plaintiff’s
motion to withdraw.  
2 

require. If the plaintiff believes he needs additional time to conduct discovery,
he may request an appropriate extension, and the court will consider it.
II.

The Defendants’ Motion to Withdraw ECF Submissions
On November 11, 2015, the defendants filed a motion asking the court to

withdraw certain items from the court docket. Dkt. No. 88. The documents, all
filed by the plaintiff, consist of the plaintiff’s discovery demands and responses,
with numerous attachments. Dkt. Nos. 75, 76, 78, 79, 80, 83 and 87.
In support of their motion to withdraw these documents, the defendants
first point out that the plaintiff is ignoring the court’s October 15, 2015 order
stating that parties should not file discovery demands or responses with the
court. Dkt. No. 73. In that order, the court stated that the “parties should serve
discovery on the opposing parties, and must not file them with the court.” Id.
In his response to the defendants’ motion, the plaintiff explains that he
misunderstood the court’s order to mean that, while he was not to direct
discovery to the court, he could still file discovery with the court, as long as it
was directed to the defendants. Dkt. No. 94. He explains that he made an
honest mistake. Id. The plaintiff’s explanation is credible, and the court trusts
that he will not run afoul of this instruction in the future.
The defendants also express concern that many of the contested
documents previously had been marked confidential by the defendants when
they produced them to the plaintiff. The defendants argue that by filing the
documents on the public docket, the plaintiff was violating the terms of the

3 

protective order that this court entered on February 18, 2015 (Dkt. No. 44 and
February 18, 2015 text order).
Although it is not clear to the court which of the many filed documents
the defendants believe are covered by the protective order (the defendants do
not clarify if it is two, ten, or fifty documents), the court’s local rules provide
that before any party makes a “confidential” document available to the public,
that party must either file a motion asking the court to seal the document (and
stating cause for doing so), or object to the designation of the materials as
confidential. See General Local Rule 79(d). When the plaintiff files something
with the court, the clerk’s office places the document on the public docket for
anyone to see. Making documents covered by a protective order available for
the public to see violates the terms of the protective order.
The court understands that the defendants have asked the court to
“withdraw” the identified documents from the electronic docket. The court is
aware that General Local Rule 79(c) states that no person may “withdraw”
items “belonging in the file of an action” without an order from the court. It is
not clear to the undersigned, however, that this rule applies in the current
situation. This rule has not been modified in some time; the court suspects
that it harkens back to the days before the electronic docket, when people filed
pieces of paper, which the clerk’s office placed in manila file folders. It is not
clear how one may “withdraw” something from an electronic docket.
Regardless of whether Rule 79(c) is meant to cover this situation, another
solution to this problem is for parties to ask the court to restrict confidential
4 

documents from public viewing. If, for example, a party needs to file a
confidential document to support a particular motion, the party may ask the
court to restrict that document from public viewing. That way, the parties (in
particular, the defendants, who have access to the docket electronically) may
still see the documents, but people who are not part of the case cannot see
them.
The court has asked the clerk’s office to restrict access to the documents
in docket entries 75, 76, 78, 79, 80, 83 and 87 to the court and the parties.
This restriction is broader than necessary, because not all of the documents in
those entries are covered by the protective order. Because the court has not
relied on these documents in reaching any decisions, however, public access to
them is not necessary at this time. See Baxter Intern., Inc. v. Abbott
Laboratories, 297 F.3d 544, 545 (7th Cir. 2002) (noting that openness in
judicial proceedings need apply only to those documents that influence or
underpin judicial decisions). The court advises the parties to limit future
requests to restrict access only to those particular documents covered by the
protective order.
III.

The Plaintiff’s Request for Mediation
On October 27, 2015, the plaintiff filed a letter with the court indicating

that he believes the parties might be able to reach a settlement or considerably
narrow the issues if they had the assistance of a mediator. Dkt. No. 77. He
requested that, if the defendants agree, the court provide a mediator. To the
court’s knowledge, the defendants have not responded to the plaintiff’s letter.
5 

When parties agree that mediation may resolve their case, the presiding
judge will refer the case to a magistrate judge for the limited purpose of
conducting the mediation. The magistrate judge is selected at random (there
are six magistrate judges in this district), and will report back to the presiding
judge only the outcome of the mediation. The magistrate judge does not share
with the presiding judge anything the parties said during the mediation, or any
offers that either party made; the magistrate tells the presiding judge only that
the parties resolved the case, or that they did not.
The court will not order the defendants to agree to mediation. The court
will, however, set a deadline for the defendants to notify the court about
whether they are willing to participate in magistrate-facilitated mediation. The
court will require the defendants to notify the court (and the defendant) of their
willingness by January 14, 2016.
IV.

Conclusion
The court ORDERS that the plaintiff’s motion to compel and for

sanctions (Dkt. No. 84) is DENIED as moot.
The court further ORDERS that the plaintiff’s motion to withdraw his
motion to compel (Dkt. No. 93) is DENIED AS UNNECESSARY.
The court further ORDERS that the defendants’ motion to withdraw
certain ECF submissions (Dkt. No. 88) is DENIED. The clerk’s office has
restricted access to these submissions to the court and the parties.

6 

The court ORDERS that, by the end of the day on January 14, 2016,
the defendants notify the court whether they are willing to have the court refer
the case to a magistrate judge for the limited purpose of mediation.
Dated in Milwaukee, Wisconsin this 1st day of December, 2015.

7