Neisler v. Larson et al

Filing 28

DECISION AND ORDER signed by Judge Pamela Pepper on 6/19/2015 GRANTING 21 plaintiff's Motion for Discovery; DENYING 23 plaintiff's Motion to Appoint Counsel, and DIRECTING plaintiff to respond to defendants' Motion for Summary Judgment by August 24, 2015. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MATHEW NEISLER,
Plaintiff,
v.

Case No. 14-cv-655-pp

DONNA LARSON AND
BELINDA SCHRUBBE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR DISCOVERY
(ECF NO. 21), DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (ECF
NO. 23), AND DIRECTING PLAINTIFF TO RESPOND TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT BY AUGUST 24, 2015
______________________________________________________________________________
Plaintiff Mathew Neisler is incarcerated at Waupun Correctional
Institution, and represents himself. On June 6, 2014, he filed a civil rights
complaint against the defendants. (ECF No. 1.). He amended that complaint
on June 18, 2014 (ECF No. 5), and on August 14, 2014, Judge Rudolph T.
Randa screened the amended complaint, see 28 U.S.C. § 1915A, and permitted
the plaintiff to proceed on Eighth Amendment deliberate indifference to a
serious medical need claims against defendants, Waupun Correctional
Institution Nurses Donna Larson and Belinda Schrubbe. On October 16, 2014,
Judge Randa issued a scheduling order, setting a January 16, 2015, deadline
for the the parties to complete discovery and a February 16, 2015, deadline for
the parties to file dispositive motions. On December 29, 2014, the case was
reassigned from Judge Randa to Judge Pepper.

1

Motion for Discovery
The plaintiff has filed a pleading entitled “Plaintiff’s Motion for
Discovery.” (ECF No. 21). In this motion, he asks the court for a scheduling
order, “allowing a term for discovery pursuant to Rule 56(d) of the federal rules
of civil procedure.” He asks the court to extend the deadline for him to respond
to the defendants’ motion for summary judgment until 30 days after discovery
is completed. He attached to this motion the “Declaration of Mathew Neisler.”
(ECF No. 22). According to the declaration, the plaintiff never received a
scheduling order providing a “term of discovery.” He indicates that he didn’t
receive the defendants’ February 16, 2015 motion for summary judgment until
February 20. The plaintiff says that he needs to conduct discovery in order to
respond to the motion for summary judgment. He also indicates that on
February 23, 2015, he asked to be able to review his medical files (his
complaint alleges that the defendants were deliberately indifferent to his
serious medical needs, in violation of the Eighth Amendment), but that the
institution had not yet allowed him to review those files.
The defendants filed a brief opposing the motion for discovery. (ECF
No. 24). They contend that the plaintiff has no excuse for his failure to conduct
discovery before the court’s January 16, 2015, discovery deadline, noting that
the docket shows that Judge Randa’s October 16, 2014, scheduling order was
sent to the plaintiff, via U.S. mail, at Waupun, the same day the judge entered
the order. They note that this is not the only case the plaintiff has filed in
federal court, and so he should be aware of how the discovery process works.
2

The defendants indicated that they would not object to the court giving the
plaintiff a thirty-day extension to respond to their summary judgment motion,
but they ask that the court deny his motion for discovery. In addition, the
defendants submit information verifying that the plaintiff reviewed his medical
file on April 2, 2015. (ECF No. 25, Larson Decl. ¶ 3).
The plaintiff has submitted a declaration under penalty of perjury,
attesting that he did not receive a scheduling order. In that declaration, he lists
the discovery he seeks from the defendants. While some of it appears to be the
type of information that would be contained in his medical records (which it
appears he now has had the opportunity to review), some of it—the identity of a
person who pushed his wheelchair on a certain date, job descriptions for the
defendants—does not appear to be the type likely to be contained in the prison
medical file. The plaintiff should have an opportunity to obtain from the
defendants the discovery that was not contained in his medical records, and
the court will allow him a short period of time in which to do so. The plaintiff
must submit his discovery request to the defendants on or before July 10,
2015. The defendants must provide their responses to the plaintiff’s discovery
request by July 24, 2015. If the plaintiff wishes to file a response to the
defendants’ motion for summary judgment, he must do so by August 24,
2015, and the defendants’ reply is due September 8, 2015.

3

Motion to Appoint Counsel
In his motion asking the court to appoint counsel to represent him, the
plaintiff states that he does not have the money to hire an attorney. (ECF No.
23). He states that he has tried to recruit a lawyer himself, and has been
rejected by four different agencies. He says that at the beginning of the
litigation, he had two inmates who provided him with substantial assistance,
but that they are no longer available for various reasons. According to the
plaintiff, without his fellow inmates’ assistance, he has great difficulty
comprehending and responding to the defendants’ motions. The plaintiff also
states that he has limited access to the law library because he’s in program
status, and so can only use the library in the day time if he has a “verifiable
court deadline.” He says the institution’s computers don’t work regularly.
In a civil case, the court has discretion to decide whether to recruit a
lawyer for someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696
(7th Cir. 2013); 28 U.S.C § 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706
F.3d 864, 866-67 (7th Cir. 2013). First, however, the person has to make a
reasonable effort to hire private counsel on their own. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). After the plaintiff makes that reasonable attempt to
hire counsel, the court then must decide “whether the difficulty of the case –
factually and legally – exceeds the particular plaintiff’s capacity as a layperson
to coherently present it.” Navejar, 718 F.3d at 696 (citing Pruitt, 503 F.3d at
655). To decide that, the court looks, not only at the plaintiff’s ability to try his
case, but also at his ability to perform other “tasks that normally attend
4

litigation,” such as “evidence gathering” and “preparing and responding to
motions.” Id.
The plaintiff has provided the court with four letters from attorneys or
legal organizations declining to represent him. (ECF No. 23-1). The letters are
dated August 22, 2012; November 5, 2012; November 5, 2012; and November
14, 2012. The plaintiff’s amended complaint, however, alleges that the
defendants violated his Eighth Amendment rights between March 2012 and
May 2013. The letters, therefore, are dated before the conclusion of the offenses
the plaintiff alleges in his complaint; it is hard to understand how one can seek
legal representation before one has been injured. Further, the plaintiff filed the
same four letters in support of his December 30, 2013, motion to appoint
counsel in another case he had in this district, Neisler v. Tuckwell, Case No.
13-cv-821-RTR (ECF No. 14). These facts demonstrate that the plaintiff has not
submitted proof that he made efforts to find attorneys to represent him in this
case; rather, he consulted some attorneys about something (it isn’t clear what)
before the conclusion of the events described in the complaint.
Even if the plaintiff had submitted documentation proving that he’d
made a reasonable attempt to retain counsel for this case, the court would not
recruit pro bono counsel for him at this time. The plaintiff does not state when
he stopped receiving assistance from the two inmates. But it appears that he
did not have assistance with his March 2015, motion for discovery and his
April 2015, motion to appoint counsel. These filings reveal that at this stage,
the plaintiff is capable of representing himself. He lists discovery that he needs
5

and makes competent arguments on his behalf. The plaintiff’s medical care
claim is not very complex—he alleges that the defendants placed him in an
unsafe environment after he damaged his prosthetic limb, and again after he
received a new prosthetic limb. The court concludes that the plaintiff is
competent to conduct discovery and to respond to the defendants’ summary
judgment motion. Accordingly, the court will deny the plaintiff’s motion to
appoint counsel.
The court GRANTS the plaintiff’s motion for discovery (ECF No. 21). The
court ORDERS that the plaintiff must submit his discovery request to the
defendants on or before July 10, 2015. The court ORDERS that the
defendants must provide their responses to the plaintiff’s discovery request by
July 24, 2015. The court ORDERS that the deadline for the plaintiff to file his
response to the defendants’ motion for summary judgment is extended to
August 24, 2015. The court ORDERS that the defendants must file their reply
by September 8, 2015.
The court DENIES the plaintiff’s motion to appoint counsel (ECF No. 23).
Dated at Milwaukee this 19th day of June, 2015.

6