Scott v. Walker et al

Filing 47

ORDER signed by Judge Pamela Pepper on 5/27/2016 DENYING WITHOUT PREJUDICE 36 Plaintiff's Motion to Appoint Counsel ; GRANTING 38 Defendant Richter's Motion to Amend/Correct Scheduling Order to add expert disclosure deadlines; DENYING 42 Plaintiff's Motion to Compel; and DENYING 45 Plaintiff's Motion for Consideration to Appoint Counsel. (cc: all counsel; by USMail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
STEVEN DIONNE SCOTT,
Plaintiff,
v.

Case No. 14-cv-864-pp

JAMES RICHTER,
RICHARD HEIDORN, MD, and
JEANNE ZWIERS,
Defendants.
______________________________________________________________________________
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION
TO APPOINT COUNSEL (DKT NO. 36), GRANTING DEFENDANT JAMES
RICHTER’S MOTION TO AMEND/CORRECT SCHEDULING ORDER TO ADD
EXPERT DISCLOSURE DEADLINES (DKT. NO. 38), DENYING PLAINTIFF’S
MOTION TO COMPEL (DKT. NO. 42), AND DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION TO APPOINT COUNSEL (DKT. NO. 45)
______________________________________________________________________________
The plaintiff, Steven Dionne Scott, filed a motion asking the court to
appoint counsel on March 8, 2016. Dkt. No. 32. The court denied the motion
without prejudice on March 23, 2016, after concluding that the plaintiff had
shown his competence to litigate through his motions, pleadings, and briefs.
Dkt. No. 25. Two days later, the court received another motion for appointment
of counsel from the plaintiff, this one dated March 24, 2016. Dkt. No. 36. It
seems likely that the plaintiff mailed this motion before he received the court’s
March 23, 2016 order. The court nevertheless will address this second motion
to appoint counsel, as well as the plaintiff’s motion for reconsideration to
appoint counsel. Dkt. No. 45. The court also will address defendant James

1

Richter’s motion to amend/correct the scheduling order to add expert
disclosure deadlines and the plaintiff’s motion to compel. Dkt. Nos. 38, 42.
I.

PLAINTIFF’S MOTION TO APPOINT COUNSEL
In his motion to appoint counsel, the plaintiff says that he suffers from

blurred vision, which makes it difficult to try and/or prosecute his case. Dkt.
No. 36. He also asserts that he needs an attorney to help find expert witnesses
to explain his eye condition and what causes it. Id. The plaintiff argues that
this will make a difference in the outcome of the plaintiff’s civil suit. Id. Neither
of these arguments changes the court’s prior conclusion that the plaintiff is
competent to litigate this case. See Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir.
2013) (citing Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)). As the court
noted in its recent order, the plaintiff’s blurred vision has not interfered with
his ability to file motions, pleadings and briefs to date.
“[D]eciding whether to recruit counsel ‘is a difficult decision: Almost
everyone would benefit from having a lawyer, but there are too many indigent
litigants and too few lawyers willing and able to volunteer for these cases.’”
Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (quoting Olson v.
Morgan, 750 F.3d 708, 711 (7th Cir. 2014)). “Consequently, ‘[d]istrict courts
are … placed in the unenviable position of identifying, among the sea of people
lacking counsel, those who need counsel the most.’” Id.
Other than his reference to his blurred vision, the plaintiff does not
assert that he is not competent to litigate this case; he argues only that an
attorney would be better able to find an expert witness than he would be. Even
2

if the court decided to recruit counsel for the plaintiff, there is no guarantee
that the attorney would elect to hire an expert witness. In fact, the type of
information the plaintiff says the expert would need to testify about–explaining
the plaintiff’s eye condition and its causes–is the type of information that could
be presented to the court without an expert witness, especially at the summary
judgment stage. For example, a plaintiff may cite to a medical treatise to
describe medical conditions. The court will deny without prejudice the
plaintiff’s second motion to appoint counsel.
II.

PLAINTIFF’S MOTION FOR RECONSIDERATION
On May 17, 2016, the court received a one-page motion from the

plaintiff, asking the court to reconsider its decision regarding appointment of
counsel. Dkt. No. 45. He argues that he has used the discovery process to
gather evidence and prepare and respond to motions, but that counsel is
necessary to help seek an expert medical witness, whose testimony would have
an impact on the plaintiff’s medical malpractice claim. Id.
Federal Rule of Civil Procedure 54(b) allows any order adjudicating fewer
than all the claims to be revised at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the parties.
Motions to reconsider (or more formally, to revise) an order under Rule 54(b)
are judged by largely the same standards as motions to alter or amend a
judgment under Rule 59(e): “to correct manifest errors of law or fact or to
present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co.,
827 F.2d 246, 251 (7th Cir.1987) (quoting Keene Corp. v. Int'l Fid. Ins. Co., 561
3

F.Supp. 656, 665-66 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984) (citation
and footnote omitted)), amended by, 835 F.2d 710 (7th Cir.1987); compare
Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996) (providing nearly
identical standard for motion under Rule 59(e)). The plaintiff has shown no
manifest error of law or fact, and as the court discussed above, even if the
court appointed counsel, that counsel might not retain an expert. The court
will deny this motion.
III.

RICHTER’S MOTION TO AMEND/CORRECT SCHEDULING ORDER
Defendant James Richter asks the court to amend the scheduling order

to add an expert disclosure deadline. Dkt. Nos. 38, 39.
Federal Rule of Civil Procedure 26(a) requires parties to disclose certain
information at the beginning of a case, without the other party having to ask
for it. But Rule 26(a)(1)(B)(iv) says that in a case “brought without an attorney
by a person in the custody of the United Stets, a state, or a state subdivision,”
the parties do not have to make the Rule 26(a) “automatic” disclosures. For this
reason, defendant Richter acknowledges that the plaintiff is not under an
obligation to automatically disclose the name of any expert the plaintiff might
use. Richter asserts, however, that “it makes sense to require the plaintiff to
disclose any expert witnesses who support his position prior to the filing of
dispositive motions.” Dkt. No. 39 at 2. He further argues that adding a deadline
for disclosure of the identity of the plaintiff’s expert (and requiring the plaintiff
also to disclose any reports containing that expert’s opinions and conclusions)
would streamline the discovery and briefing process. Id. at 2-3. The court will
4

grant defendant Richter’s motion, and will enter a separate, amended
scheduling order containing a deadline by which the plaintiff must identify any
expert he plans to use, and must disclose any report containing that expert’s
conclusions and opinions.
IV.

PLAINTIFF’S MOTION TO COMPEL
Finally, the court turns to the plaintiff’s motion to compel. Dkt. No. 42.

The plaintiff asserts that he “filed for the production of documents, for his
entire medical file which is (5) volumes.” Id. at 1. The plaintiff asked for this
information as part of discovery, because of the “massive amount and/or
capacity of records,” and because he is given only 30 minutes total once a
month to review his records at the institution. Id. The plaintiff also says that it
takes him a long time to review the medical file due to his eye condition. He
signed a waiver for the defendants to obtain his records, and the plaintiff
argues that now the defendants want to deny him the same discovery.
This court’s local rules, and the federal rules, require that before a party
files a motion to compel, that party first must attempt to meet and confer with
the other side, to try to work out any discovery disagreements before asking the
court to intervene. Federal Rule of Civil Procedure 37(a); Civil Local Rule 37
(E.D. Wis.). The local rules require the plaintiff to file a certification, attesting to
the fact that he attempted to meet and confer before filing the motion. While
prisoners cannot call opposing counsel with ease, or go to an in-person
meeting, inmates can “meet and confer” with opposing counsel by writing
letters. In this case, the plaintiff’s motion did not include the certification
5

regarding an attempt to meet and confer, and so the motion did not comply
with the federal and local rules.
The court is troubled, however, by the plaintiff’s assertion that he has
only 30 minutes per month to review his medical file. The court expects the
defendants to assist the plaintiff in being able to have a meaningful review of
his relevant medical records, either by providing him with a copy of those
records or ensuring that he has as much time as he needs, given his condition,
to review them at the institution and make copies.
V.

ORDER
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to

appoint counsel. Dkt. No. 36. The court DENIES the plaintiff’s motion for
reconsideration. Dkt. No. 45. The court DENIES the plaintiff’s motion to
compel. Dkt. No. 42.
The court GRANTS defendant James Richter’s motion to amend/correct
scheduling order to add expert disclosure deadline. Dkt. No. 38. The court will
issue a separate, amended scheduling order.
Dated in Milwaukee, Wisconsin this 27th day of May, 2016.

6