Williams v. Correctional Health Care et al

Filing 156

ORDER signed by Judge Pamela Pepper on 6/27/2017. 129 Plaintiff's MOTION to Strike DENIED as moot. 131 Plaintiff's MOTION for Relief from Judgment DENIED. 132 Plaintiff's MOTION to Strike Medical Defendants' Motion for exten sion of time DENIED. 134 Plaintiff's MOTION for Default Judgment DENIED. 138 Plaintiff's MOTION for Extension of Time GRANTED; plaintiff to file response to Medical Defendants' motion for summary judgment in time for the court to receive it by 8/11/2017. 153 Medical Defendants' MOTION to Amend/Correct Proposed Findings of Fact Paragraph 15 GRANTED. (cc: all counsel, via mail to Travis Williams at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TRAVIS DELANEY WILLIAMS,
Plaintiff,
v.

Case No. 14-cv-452-pp

NURSE LESLIE, NURSE TOM,
PATRICK J. NOONAN, LIEUTENANT FRIEND,
SERGEANT MELISSA A. GONZALES,
CAPTAIN WEARING, DEREK BERGUM,
NURSE NICOLE, TROOPER JOHN DOE,
CARRIE L. BALLEW, and
NURSE PRACTITIONER JANE DOE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING AS MOOT PLAINTIFF’S MOTION TO
STRIKE (DKT. NO. 129), DENYING PLAINTIFF’S MOTION FOR RELIEF
FROM JUDGMENT (DKT. NO. 131), DENYING PLAINTIFF’S MOTION TO
STRIKE (DKT. NO. 132), DENYING PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT (DKT. NO. 134), GRANTING PLAINTIFF’S MOTION FOR
EXTENSION OF TIME (DKT. NO. 138), GRANTING THE MEDICAL
DEFENDANTS’ MOTION TO AMEND/CORRECT PROPOSED FINDING OF
FACT (DKT. NO. 153), AND DIRECTING PLAINTIFF TO FILE HIS
RESPONSE TO THE MEDICAL DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT ON OR BEFORE AUGUST 11, 2017
______________________________________________________________________________
On February 13, 2017, the court issued an order resolving all of the nondispositive motions pending at that time. Dkt. No. 120. Since then, the plaintiff
has filed several new motions. Dkt. Nos. 129, 131, 132, 134, and 138. The
Medical Defendants also have filed a motion. Dkt. No. 153.

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The County Defendants
On February 9, 2017, the County Defendants filed an expedited motion
asking the court to extend their deadline to file their reply in support of their
motion for summary judgment. Dkt. No. 115. The court granted that motion in
its February 13, 2017 order. Dkt. No. 120. On February 16, 2017, the court
received from the plaintiff an objection to or, alternatively, a motion to strike
the Racine County defendants’ motion for extension of time to file their reply
brief in support of their motion for summary judgment. Dkt. No. 129. In the
motion, the plaintiff argued that counsel for the County Defendants was
“crooked,” and was trying to make the plaintiff look bad by claiming that the
plaintiff’s voluminous briefs required more time to review. Id. at 1-2. The
plaintiff claimed that counsel had been “on the phone for days at a time,” in
what he believed was a conspiracy, talking to this court about causing
problems in the plaintiff’s other cases. Id. at 2. The plaintiff concluded by
asking the court to grant summary judgment in his favor against the County
Defendants. Id. at 3. It appears the plaintiff prepared this motion before he
received the court’s February 13, 2017 order.
On February 24, 2017, the court received from the plaintiff a motion for
default judgment. Dkt. No. 134. In this motion, he returned to the issues he
raised in the February 16, 2017 objection/motion to strike. He again took issue
with the reasons the County Defendants gave for requesting the extension of
time to file their reply, calling the reasons (the voluminous nature of the
plaintiff’s briefs and the difficulty in reading them) a “deliberate lie.” Id. at 2. He
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asked the court to enter judgment in his favor because of his belief that the
County Defendants misled the court into giving them more time to reply.
The court has not had telephone conversations with counsel for the
County Defendants in this or any of the plaintiff’s other cases. For the court to
speak with counsel for the County Defendants without having the plaintiff on
the line would constitute an ex parte contact; the court may not have ex parte
discussions with parties to a case.
The County Defendants did ask for more time to reply, and they did base
that request on the fact that the plaintiff’s summary judgment materials were
voluminous and hard to read. Dkt. No. 115. The plaintiff did file voluminous
materials, and it is difficult to read documents written with a rubber pencil,
especially when the documents then are scanned into the court’s electronic
docketing system (which sometimes can make an image a bit blurry). That is
not a criticism of the plaintiff. It is just a statement of fact, and an explanation
of why the County Defendants needed additional time to respond. The court
gave them that time, dkt. no. 120, and the County defendants filed their reply
materials on February 15, 2017, dkt. no. 121. The County Defendants did not
lie to the court, or mislead it into giving them additional time, and so there was
no basis for the court to deny them that additional time, or to punish them by
entering default judgment in the plaintiff’s favor.
Even if the County Defendants had been late in filing their reply
materials, the court would not grant the plaintiff’s request for default
judgment. Reply materials are optional; parties aren’t required to file them.
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Civil Local Rule 56(b)(3) provides that “[a] moving party may file [reply
materials] within 14 days of the service of the opposing party’s materials under
subsection (b)(2).” Civil L. R. 56(b)(3) (E.D. Wis.) (emphasis added). In contrast,
the provisions in Local Rule 56(b)(1) and (b)(2) contain the word “must.” Civil L.
R. 56(b)(1) and (2) (E.D. Wis.).
Finally, the plaintiff asks the court to direct counsel for the County
Defendants to “enter into an mediation consistent with Section 655.43 of the
Supreme Court of Wisconsin . . . .” Dkt. No. 134 at 3. The court will deny this
request. Wis. Stat. §655.43 states, “The claimant and all respondents named in
a request for mediation filed under s. 655.44 or 655.445 shall participate in
mediation under this subchapter.” This case is not a health care suit under the
Health Care Liability and Injured Patients and Families Compensation law of
Wisconsin; §655.43 does not apply here. The court will deny both the motion to
strike the County Defendants’ motion for an extension of time, and the
plaintiff’s motion for default judgment.
One of two motions the court received on February 21, 2017 is an
expedited motion for relief from judgment. Dkt. No. 131. The plaintiff points out
that the caption of the court’s February 13, 2017 order required him to file his
response to defendant Derek Bergum’s motion for summary judgment by
March 1, 2017, but that he already had filed that response. The plaintiff is
correct—the court had received the plaintiff’s response to Bergum’s motion on
February 2, 2017. Dkt. No. 109. The court apologizes to the plaintiff for its
error—the body of the February 13, 2017 order reflects the court’s
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acknowledgement that the plaintiff responded to Bergum’s motion for summary
judgment, and its intention to give the plaintiff until March 1, 2017 to respond
to the motion for summary judgment filed by Nurse Leslie and Nurse Nicole.
The court will deny the plaintiff’s motion for relief from judgment as moot; he
does not need relief from the order, because he already has complied with it.
The Medical Defendants
Most of the motions the plaintiff filed since February 13, 2017 relate to a
mix-up with regard to the Medical Defendants’ motion for summary judgment.
A bit of history is helpful. The Medical Defendants filed their motion for
summary judgment on December 21, 2016. Dkt. No. 92. The plaintiff never has
filed a response to that motion. On February 9, 2017, however, the Medical
Defendants filed a motion asking the court to give them an extension of time to
reply—despite the fact that the plaintiff had not responded. Dkt. No. 117. In its
February 13, 2017 order, the court granted that request (not realizing that the
plaintiff had not filed a response to the Medical Defendants’ motion for
summary judgment). The post-February 13, 2017 motions relate to the
confusion that arose out of this set of circumstances.
In the February 21, 2017 motion in which he asked for relief from the
court’s order requiring him to respond to Bergum’s motion for summary
judgment, dkt. no. 131, the plaintiff also indicated that he never had received
the motion for summary judgment from Nurse Leslie and Nurse Nicole (even
though their certificate of service, dkt. no. 96, indicates that they mailed the
motion to the plaintiff). The plaintiff asked the court to direct the defendants to
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send him a new copy of the motion and supporting documents, and asked the
court to extend his time to respond to that motion. Dkt. No. 131 at 2.
The court received a second motion from the plaintiff on February 21,
2017; this one asked the court to strike the February 9, 2017 motion for
extension of time filed by counsel for Nurse Leslie and Nurse Nicole; in the
alternative, it objected to the court’s having granted the motion. Dkt. No. 132.
The plaintiff reiterated that he never received a motion for summary judgment
from Leslie and Nicole. Dkt. No. 132 at 1. Given that fact, he indicated that he
did not file a response to the motion, and so there was “nothing to reply to.” Id.
at 2-3. The plaintiff is correct.
In their February 9, 2017 motion for extension of time to reply. Leslie
and Nicole indicated that the plaintiff had filed a portion of his response to
their motion for summary judgment on January 26, 2017 (Dkt. No. 104), and
another portion on February 2, 2017 (Dkt. No. 109). The court has looked at
those two documents. Dkt. No. 104 is the plaintiff’s response to the County
Defendants’ motion for summary judgment, and Dkt. No. 109 is the plaintiff’s
response to Bergum’s motion for summary judgment. As the court already has
indicated, the plaintiff has not filed a response to Leslie and Nicole’s motion for
summary judgment.
On March 3, 2017, counsel for Nurse Leslie and Nurse Nicole filed a
letter acknowledging the various errors which had led to this confusing state of
affairs. The letter stated that counsel did not know why the plaintiff had not
received the motion for summary judgment and the supporting material. He
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stated, however, that his office had sent a second copy to the plaintiff earlier
that week. Dkt. No. 136. Counsel also indicated that he did not object to the
court giving the plaintiff a reasonable extension of time to respond to their
motion. Id. Counsel apologized for any confusion caused by the February 9,
2017 motion for extension of time to file reply materials; he mistakenly believed
that the plaintiff’s response to Bergum’s motion for summary judgment
contained responses to the motion for summary judgment he filed on behalf of
Leslie and Nicole. Id.
On March 6, 2017, the court received from the plaintiff a motion asking
for an extension of time to respond to the motion for summary judgment filed
by Nurse Leslie and Nurse Nicole. Dkt. No. 138. The plaintiff stated that not
only had he just received the motion, but that he must use a rubber pencil to
respond; that he can barely see out of the glasses he must wear; and that he
has to have psychology services go over the motion for summary judgment with
him. Id. The court considers this—as well as the confusion over the fact that
the plaintiff received the motion months after Leslie and Nicole filed it—good
cause for an extension of time under Federal Rule of Civil Procedure 6(b)(1).
Indeed, the plaintiff’s time to respond to Leslie and Nicole’s motion did not
begin to run until he actually received it.
The court will deny the plaintiff’s motion for relief from judgment, and
will deny his motion to strike. The court will grant the plaintiff’s request that
the court give him additional time to reply to the Medical Defendants’ motion

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for summary judgment, and will give him more time than he requested to
ensure his ability to file a timely response.
Finally, on April 11, 2017, the court received from Leslie and Nicole a
motion asking the court to allow them to correct one of their proposed findings
of fact. Dkt. No. 153. The motion indicates that in proposed finding of fact 15,
they stated that the plaintiff was assessed on May 8, 2013, two days after he
arrived at the Racine County Jail. The motion indicates that actually, while
medical staff saw the plaintiff on May 8—which was actually the day he arrived
at the jail from the hospital—he wasn’t assessed until May 10, 2013. Id. at 1-2.
The plaintiff objected to this motion, arguing that he was looked at but
he was never treated, and he never received any medication. Dkt. No. 155. The
court will grant the defendants’ motion to correct proposed finding of fact 15.
The plaintiff has the right to dispute the proposed finding, and the court
understands that he does. But the court will allow the defendants to correct
the dates.
Conclusion
The court DENIES AS MOOT the plaintiff’s motion to strike the County
Defendants’ motion for an extension of time to reply. Dkt. No. 129. The court
DENIES the plaintiff’s motion for relief from judgment. Dkt. No. 131. The court
DENIES the plaintiff’s motion to strike the Medical Defendants’ motion for an
extension of time. Dkt. No. 132. The court DENIES the plaintiff’s motion for
default judgment. Dkt. No. 134.

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The court GRANTS the plaintiff’s motion for extension of time to file a
response to the Medical Defendants’ motion for summary judgment. Dkt. No.
138. The court ORDERS that the plaintiff shall file his response to the motion
for summary judgment filed by Nurse Leslie and Nurse Nicole in time for the
court to receive it on or before August 11, 2017.
The court GRANTS the Medical Defendants’ motion to correct their
proposed finding of fact 15. Dkt. No. 153.
Dated in Milwaukee, Wisconsin this 27th day of June, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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