Jordan v. Michael Hafemann et al

Filing 61

ORDER signed by Judge Pamela Pepper on 8/25/2015 re 28 Plaintiff's Motion for an Order Allowing Non-stenographic Depositions, and Motion for an Extension of Time for Discovery: The court DENIES the motion to take depositions, but AMENDS the scheduling order as follows. Discovery shall be completed by 10/26/2015 and the deadline for filing motions to dismiss and motions for summary judgment is extended to 12/4/2015.(cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
OCTAVIUS JORDAN,
Plaintiff,
v.

Case No. 14-cv-987-pp

MILWAUKEE COUNTY HOUSE OF CORRECTION,
ARMOR CORRECTIONAL HEALTH SERVICE, INC.,
MR. HAFEMANN,1
UNKNOWN, sued as McKenzie or Hernandez Asst Sup,2
MRS. GOSS,3
DR. GABLE,
FLOYD ELFMAN,4
NURSE MIA, sued as nurse Mia or Mai,5
UNKNOWN, sued as Nurse for Armor Health Services,
And JOHN/JANE DOE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR
DEPOSITIONS AND ISSUING SECOND AMENDED SCHEDULNG ORDER
______________________________________________________________________________
The plaintiff has filed a motion to take non-stenographic depositions due
to his inability to pay for them. Dkt. No. 28. He seeks the court’s assistance in
setting up a time, place, and means to depose the defendants. Dkt. No. 28-1.
According to the plaintiff, he submitted a proposal to the defendants to hold
the depositions at Green Bay Correctional Institution, and the parties are in
the process of working out the details. The plaintiff believes that the only way

1

 Mr. Hafemann is correctly identified as “Superintendent Michael Hafemann.” 
 Unknown, sued as McKenzie or Hernandez Asst Sup is correctly identified as “Assistant Superintendent Jose 
Hernandez.” 
3
 Mrs. Goss is correctly identified as “Officer Rebecca Goss.” 
4
 Floyd Elfman is correctly identified as “Nurse Practitioner Floyd Elftman.” 
5
 Nurse Mia is correctly identified as “Nurse Mai Xiong.” 
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he can have a fair chance of succeeding in his case is to depose the defendants
and obtain expert witnesses. He also states that he may need more time for
discovery to work out an agreement with the defendants for handling
depositions. (The deadline for the completion of discovery was July 20, 2015,
and the deadline for filing dispositive motions was August 21, 2015, Dkt. 27).
The defendants opposed the plaintiff’s motion. Dkt. No. 30. Defendants
Armor Correctional Health Service, Inc., Dr. Gable6, Nurse Practitioner Floyd
Elftman, and Nurse Mai Xiong (Armor defendants) ask the court to limit the
scope of allowable discovery to written discovery and to enter an order denying
the plaintiff’s petition for depositions. The Armor defendants contend that,
contrary to Federal Rule of Civil Procedure 26(b)(2)(C), the discovery sought is
unreasonably cumulative or duplicative as it has already been obtained
through the plaintiff’s medical records. They contend that the plaintiff had
ample opportunity to obtain the information necessary to prosecute this case
through their responses to the plaintiff’s requests for production of documents-that is, a copy of his medical records. The Armor defendants further contend
that the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake, and the importance of
the discovery in resolving the issues, as illustrated by the timeline and
summary of the medical care provided to the plaintiff during the relevant time
period, see Affidavit of Michael P. Russart, Exh. 1, Dkt. 31-1.

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 As of July 16, 2015, defendant Dr. Gable is separately represented by Attorney Maria K. Schneider, see Dkt. 33. 

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Defendants Milwaukee County House of Corrections, Superintendent
Michael Hafemann, Assistant Superintendent Jose Hernandez, and Officer
Rebecca Goss (County defendants) contend that the plaintiff’s requests should
be denied based on his failure to comply with the Civil Local Rules and the
Federal Rules of Civil Procedures. Dkt. No. 35. The County defendants also
contend that the court should use its broad discretion to tailor discovery to
limit the unnecessary, burdensome depositions from taking place at this late
stage and at the defendants’ expense.
In general, parties may obtain discovery regarding any matter which is
relevant, pursuant to Federal Rule of Civil Procedure 26(b)(1). The court must,
on motion or on its own, limit the frequency or extent of discovery otherwise
allowed by the Federal Rules of Civil Procedure or Local Rules if it determines
that:
(i)
(ii)
(iii)

the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
the burden or expense of the proposed discovery outweighs
its likely benefit, considering the needs of the case, the
amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.

Fed. R. Civ. P. 26(b)(C).
In addition to his request to record the deposition by non-stenographic
means, which Federal Rule of Civil Procedure permits, see Fed. R. Civ. P.
30(b)(3), the plaintiff’s motion seeks the court’s help with “setting up a time,
place, and means to depose my defendants in this case.” (Dkt. No. 28-1.)
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Presumably, then, the court would arrange for an officer to conduct the
deposition. See Fed. R. Civ. P. 30(b)(5), 28(a). The plaintiff seeks the court’s
assistance because he lacks funds to pay for depositions on his own. However,
the in forma pauperis statute, 28 U.S.C. § 1915, does not authorize the court to
use public funds for deposition costs. The statute does not relieve a pro se
prisoner proceeding in forma pauperis from paying any of his discovery costs.
Kyles v. Mathy, 2010 WL 3024494, at *3 (C.D. Ill. Aug. 2, 2010) (citing Wright
v. United States, 948 F. Supp. 61, 62 (M.D. Fla. 1996) (collecting cases). Nor is
the court obligated to finance the plaintiff’s litigation. See McNeil v. Lowney,
831 F.2d 1368, 1373 (7th Cir. 1987) (district court had no statutory authority
for waiving the payment of witness fees under 28 U.S.C. § 1915, and right of
access to the court does not independently include a waiver of witness fess so
that the indigent litigant can present his case fully to the court).
Aside from the cost issue, the plaintiff (not the court) would need to
arrange for his depositions and, as a prisoner, the plaintiff faces significant
challenges in satisfying the formal requirements of Federal Rule of Civil
Procedure 30. Moreover, the plaintiff has not shown that he cannot obtain the
information he seeks through the use of other methods of discovery,
specifically, interrogatories and production of documents requests. See McNeil,
831 F.2d at 1374 n.3. For these reasons, the court will deny the plaintiff’s
motion to conduct depositions.
Under the circumstances, the court will allow the plaintiff an additional
90 days from the prior deadline—that is, until October 26, 2015—to conduct
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discovery. The court will move the deadline for filing dispositive motions
forward to December 4, 2015. (The court already has extended the deadline
once, to August 26, at the request of some of the defendants.)
Defendants Unknown and John/Jane Doe
The plaintiff must identify the Unknown and Doe defendants by October
26, 2015, or the court will dismiss those defendants. The plaintiff should use
discovery to try to learn their identities. If he has trouble, he should notify the
court by October 26, 2015, and the court will “assist him, within reason, to
make the necessary investigation.” See Billman v. Indiana Dep’t of Corr., 56
F3.d 785, 790 (7th Cir. 1995).
The court DENIES the plaintiff’s motion to take depositions (Dkt. No. 28).
The court AMENDS the Scheduling Order as follows: the deadline for the
completion of discovery is October 26, 2015, and the deadline for filing
dispositive motions is December 4, 2015.
The court ORDERS that the plaintiff shall identify the Unknown and Doe
defendants, or inform the court why he can’t identify them, by October 26,
2015, or they will be dismissed.
The court ORDERS that the clerk’s office and parties correctly identify
defendant Mr. Hafemann as “Superintendent Michael Hafemann”; defendant
Unknown, sued as McKenzie or Hernandez Asst Sup, as “Assistant
Superintendent Jose Hernandez”; defendant Mrs. Goss as “Officer Rebecca
Goss”; defendant Floyd Elfman as “Nurse Practitioner Floyd Elftman”; and
defendant Nurse Mia as “Nurse Mai Xiong.”
5

Dated at Milwaukee this 25th day of August, 2015.

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