Williams v. Swenson et al

Filing 212

ORDER signed by Judge Pamela Pepper on 8/30/2017. 102 Plaintiff's Motion to Appoint Counsel DENIED as moot. 103 Plaintiff's Motion to Compel DENIED. 138 Plaintiff's Motion for Extension of Time DENIED as moot. 139 Plaintiff� 39;s Motion for Leave to File Excess Pages DENIED as moot. 140 Plaintiff's Rule 62(b) Motion to Stay DENIED. 146 Plaintiff's Motion to Strike Kenosha County Defendants' Motion for Summary Judgment DENIED. 147 Plaintiff's Mot ion to Strike Nurse Defendants' Motion for Summary Judgment DENIED. 151 Nurse Defendants' Motion to Strike Plaintiff's Proposed Findings of Fact DENIED. 152 Plaintiff's Motion to Compel DENIED. 160 Defendant Karen Butler� 39;s Motion to Strike Plaintiff's Proposed Findings of Fact DENIED. 171 Plaintiff's Motion for Extension of Time DENIED. 180 Plaintiff's Motion to Strike DENIED. 206 Plaintiff's Motion Under Rule 43(a), et al. GRANTED. (cc: all counsel, via mail to Travis Delaney Williams at Wisconsin Secure Program Facility) (cb)

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

Case No. 14-cv-1594-pp

REBECCA SWENSON,
KAREN BUTLER,
MEGAN KEEFER,
JULIE BENNETT,
CORPORAL PARKER,
DAVID G. BETH,
GUARD ULEMAN, and
KURT MIKUTIS,
Defendants.
______________________________________________________________________________
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S THIRD MOTION TO
APPOINT COUNSEL (DKT. NO. 102), DENYING PLAINTIFF’S MOTION TO
COMPEL (DKT. NO. 103), DENYING AS MOOT PLAINTIFF’S MOTION FOR
EXTENSION OF TIME (DKT. NO. 138), DENYING AS MOOT PLAINTIFF’S
MOTION FOR LEAVE TO FILE EXCESS PAGES (DKT. NO. 139), DENYING
PLAINTIFF’S 62(B) MOTION TO STAY (DKT. NO. 140), DENYING
PLAINTIFF’S MOTION TO STRIKE (DKT. NO. 146), DENYING PLAINTIFF’S
MOTION TO STRIKE (DKT. NO. 147), DENYING DEFENDANTS’ MOTION TO
STRIKE PLAINTIFF’S PROPOSED FINDINGS OF FACT (DKT. NO. 151),
DENYING PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 152), DENYING
DEFENDANT KAREN BUTLER’S MOTION TO STRIKE PLAINTIFF’S
PROPOSED FINDINGS OF FACT (DKT. NO. 160), DENYING PLAINTIFF’S
MOTION FOR EXTENSION OF TIME (DKT. NO. 171), DENYING
PLAINTIFF’S MOTION TO STRIKE (DKT. NO. 180), AND GRANTING
PLAINTIFF’S MOTION UNDER RULE 43(A), ET AL. (DKT. NO. 206)
______________________________________________________________________________
The court allowed the plaintiff, a state prisoner, to proceed on claims
regarding the medical care he received for osteoarthritis while he was housed
at the Kenosha County Jail. Dkt. No. 12. Between May and August 2016, the

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court entered three orders resolving outstanding motions in this case1 (dkt.
nos. 85, 90 and 95); it also issued an amended scheduling order that provided
a discovery deadline of October 10, 2016 and a summary judgment deadline of
November 10, 2016. Dkt. No. 99.
Since then, the plaintiff has filed ten motions—not including his
summary judgment filings. The defendants have filed motions for summary
judgment, as well as filing two motions to strike some of the plaintiff’s filings.
This order resolves the non-dispositive motions only; the court will rule
separately on the motions for summary judgment.
1.

Plaintiff’s Third Motion to Appoint Counsel (Dkt. No. 102)
On October 3, 2016, the court received the plaintiff’s third motion to

appoint counsel. Dkt. No. 102. The plaintiff reiterates that he has been denied
access to the Columbia Correctional Institution library; he emphasizes that he
has suffered a total denial of access. Id. at 1-2. The plaintiff again asserts that
he was being retaliated against at CCI, and explains to the court that he has
filed suit asking for a preliminary injunction against the staff who retaliated
against him, but that the district court in the Western District has not yet
heard the motion for preliminary injunction. Id. The plaintiff reminds the court
that he has only a sixth-grade education, and that he has needed to rely on
other inmates to help him prepare legal documents. He says that despite these
facts, the court already has forced him to go through two motions for summary
judgment with prisoner help in the day room due to his lack of access to the
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The plaintiff has other cases pending before this court.
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law library. Id. at 3. He also indicates, in response to the court’s prior question
about whether he could do research without having to physically go to the law
library, that he previously provided the court with evidence that the law
librarian had told him he could not buy copies of court opinions. Id. at 2-3. He
argues that no one in his situation could file lucid legal documents, and that
the court is holding him to a higher standard than it would a high-priced
lawyer. Id. at 2-3.
The court has said this before in other orders: to decide whether to
appoint counsel, the court 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 v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013)
(citing Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)). The court looks not
just to the plaintiff’s ability to try the case, but also his ability to perform other
“tasks that normally attend litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id.
The ample record before the court shows that the plaintiff has been able
to use discovery to gather evidence, and has been able to present a motion for
summary judgment and respond to three separate motions for summary
judgment. He also filed and responded to numerous other motions. The court
has no doubt that preparing these documents under the circumstances the
plaintiff describes is difficult and time-consuming for the plaintiff. But with his
sixth-grade education and the other difficulties he suffers, the plaintiff has filed
more motions than many inmates who have more education—and the court
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believes (despite the plaintiff’s hints to the contrary) that it has understood his
motions.
The court continues to believe that at this point, the plaintiff is able to
represent himself, albeit with some difficulty. The court will deny the plaintiff’s
third motion to appoint counsel without prejudice. If any of the plaintiff’s
claims survive summary judgment and head to trial, the plaintiff may renew
his motions at that time.
2.

Plaintiff’s Motion to Compel (Dkt. No. 103)
On October 17, 2016, the court received from the plaintiff a motion to

compel defendant Butler to respond to two sets of requests for production of
documents. Dkt. No. 103. The motion was signed on October 5, 2017, twelve
days before the court received it and two days after the court received his third
motion for appointment of counsel. Id. In the motion, the plaintiff indicates
that he twice sent the requests to the attorney, and that both times, he
included language asking to confer. Id. In response, counsel for Butler
indicates that Butler has responded to the requests. Dkt. No. 104. Counsel
further notes that the plaintiff mailed his requests on September 4, 2016, and
October 1, 2016, but then filed his motion to compel before the thirty-day
period for Butler to respond had expired. Id.
The court previously has advised the plaintiff about how to meet and
confer before bringing a motion to compel, but the plaintiff did not follow those
instructions here. Perhaps more relevant, the plaintiff did not give Butler the
opportunity to respond to his requests before asking for the court to intervene.
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The plaintiff’s first request for production was signed on September 4, 2016; it
appears the defendant may have received it on September 12, 2016. That
means she had until October 12, 2016 to respond. The plaintiff, however, dated
his second request October 1, 2016—almost two weeks before the deadline for
Butler to respond to the first request. The second request was not timely. The
court had ordered the parties to “serve all requests for discovery by a date
sufficiently early so that all discovery [was] completed no later than October 10,
2016.” Dkt. No. 99 at 1. Preparing a discovery demand on October 1, 2016
(which it appears the defendant received on October 7, 2016) did not give the
defendant sufficient time to respond before the October 10, 2016 deadline.
Because the plaintiff did not comply with the court’s instructions about
meeting and conferring, because he did not give the defendant sufficient time
to respond, and because the defendant has responded to the plaintiff’s
discovery demands, the court will deny the plaintiff’s motion to compel.
3.

Plaintiff’s Motion for Extension of Time (Dkt. No. 138)
On November 10, 2016, the court received from the plaintiff a motion for

extension of time to respond to the defendants’ motions for summary
judgment. Dkt. No. 138. The plaintiff asked the court to extend the deadline for
him to respond to the nurse defendants’ motion for summary judgment to
January 3, 2017. Dkt. No. 138. He asked the court to rule on his motion for
summary judgment before ruling on the defendants’ motions, and he
mentioned that, at that time, he had to prepare for a hearing in a criminal case
on November 1, 2016. Id. Despite these arguments, the court received the
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plaintiff’s response to the nurse defendants’ motion on November 22, 2016.
Dkt. Nos. 154-58. The court considers that response timely, and will deny the
plaintiff’s motion for extension of time as moot.
4.

Plaintiff’s Motion for Leave to File Excess Pages (Dkt. No.139)
In his motion for leave to file excess pages, which the court received on

November 10, 2016, the plaintiff anticipated that he would need 120 pages to
respond, because he needed to refer to sections of his motion for summary
judgment and needed to point to numerous exhibits already in the record. Dkt.
No. 139. As the court indicated above, it received his responsive brief on
November 22, 2016. Dkt. No. 154. That brief was only twenty-eight pages long,
fewer than the thirty pages allowed by Civil Local Rule 7(f). The court will deny
the motion for leave to file excess pages as moot.
5.

Plaintiff’s Motion to Stay Under Rule 62(b) (Dkt. No. 140)
On November 10, 2016, the court received a document that the plaintiff

titled “Motion Under Federal Rule Civil Procedure 62(B).” Dkt. No. 140. In the
first paragraph of the motion, the plaintiff asked the court to “stay the recently
file[d] motion for summary judgment filed by [the nurse defendants].”2 Id. The
plaintiff argues that, because he filed his motion for summary judgment first,
the court should deem the defendants’ motion moot, and instead require them
to respond to his motion. Id.
In its amended scheduling order, the court stated that “[p]arties” had to
file their dispositive motions and briefs by November 10, 2016. Dkt. No. 99 at
The nurse defendants’ motion appears at Dkt. No. 116; the court received it
on October 31, 2016.
2

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1. Any party may file a dispositive motion, as long as that party files the motion
by the deadline the court sets. It is not unusual for both sides, and several
parties, to file summary judgment motions, asking the court to rule in their
favor. Often, depending on how far ahead of the dispositive motions deadline a
party files a dispositive motions, the briefing deadlines may be different for
each party.
It is possible that, because the plaintiff filed his motion for summary
judgment on October 27, 2016, and the nurse defendants filed their motion on
October 31, 2016, the plaintiff thought that the nurse defendants either didn’t
realize he’d filed his motion, or didn’t plan to respond to his motions. That is
understandable. But if the defendants wanted to file their own summary
judgment motion, they had to do so before the deadline the court had set, and
that deadline was set to expire before the deadline for the defendants to
respond to the plaintiff’s motion. The nurse defendants later filed timely
responses to the plaintiff’s motion for summary judgment.
The court will deny the plaintiff’s motion to “stay” the nurse defendant’s
summary judgment motion, or to deem it moot.
6.
Plaintiff’s Motion to Strike Defendant Butler’s Motion for Summary
Judgment (Dkt. No. 146)
The court received this motion on November 17, 2016, a week after the
Kenosha County defendants filed their motion for summary judgment. Dkt. No.
146. The plaintiff makes the same argument in this motion as he made in the
motion to deem the nurse defendants’ summary judgment motions moot: he
argues that because he filed his summary judgment motion first, the court
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should strike the Kenosha County defendants’ motion. For the same reasons
that the court denied the motion at Dkt. No. 140, the court will deny this
motion.
7.

Plaintiff’s Motion to Strike the Nurse Defendants’ Motion for Summary
Judgment (Dkt. No. 147)
The court received this motion on November 17, 2017, dkt. no. 147, but

it relates back to the nurse defendants’ October 31, 2017 motion for summary
judgment (dkt. no. 116). The plaintiff seeks the same relief in this motion that
he sought in Dkt. No. 140—he wants the court to strike the nurse defendants’
motion for summary judgment because he filed his first. Again, for the reasons
stated above, the court will deny this motion.
8.

Nurse Defendants’ Motion to Strike Plaintiff’s Proposed Findings of Fact
(Dkt. No. 151)
On November 17, 2016, the court received from the plaintiff submitted a

document entitled “Proposed Findings of Fact.” Dkt. No. 148. The nurse
defendants filed a motion asking the court to strike these proposed findings of
fact. Dkt. No. 151. The nurse defendants’ argument that the findings the court
received on November 17, 2016 make the same assertions as the findings he
filed on October 27, 2016 in support of his motion for summary judgment (dkt.
no. 109), and point out that they’ve already responded to those proposed
findings. They also submit that all documents in support of a motion for
summary judgment must be filed with the motion itself, as required in Fed. R.
Civ. P. 56 and Civil L.R. 7(a)(1). Dkt. No. 151.

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While defendants are correct that all documents in support of a motion
for summary judgment should be filed together, the court can grant leeway to
pro se litigants. The court also notes that collateral motions, such as motions
to strike, are disfavored by the Local Rules. Civil L. R. 56(b)(9).
The court has reviewed the plaintiff’s original proposed findings of fact,
dkt. no. 109 (a twelve-page document with eighty-one proposed findings of
fact), and the plaintiff’s additional proposed findings of fact, dkt. no. 148 (a
four-page document with forty-one proposed findings of fact). The subject
matter of the findings of fact is generally the same, with differences in wording
and emphasis, and the plaintiff cites to the same exhibits in support of his
assertions. The court notes that many of the proposed findings of fact are
argumentative; the court decides which factual findings to make based, not on
argument, but on the facts themselves.
The court will deny the nurse defendants’ motion to strike, and will
consider the second set of proposed findings of fact as part of the plaintiff’s
motion. There is, however, no need for the defendants to respond to these
proposed findings of fact.
9.

Plaintiff’s Motion to Compel (Dkt. No. 152)
On November 22, 2017, the court received another motion to compel

from the plaintiff. Dkt. No. 152. In this motion, he asked the court to order the
Kenosha County defendants to provide him with: (1) receipts for all of his
canteen purchases and medical co-pays between October 3, 2014, and
January 22, 2015; and (2) bed and cell assignments for October, November,
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and December of 2014. Id. According to the plaintiff, the defendants refused to
respond to these requests because they were untimely, but the plaintiff insists
he has no control over the mail. Id.
The record shows that the plaintiff dated his discovery requests on
October 8, 2016; the defendants received them on October 12, 2016. Dkt. No.
176 at 1. The court’s amended scheduling order required the parties to serve
discovery requests sufficiently early so that discovery could be completed by
the October 10, 2016 discovery cutoff. It was not the mail that caused the
plaintiff’s discovery demands to be untimely, but the fact that the plaintiff did
not serve them sufficiently early so that all discovery could be completed by
October 10, 2016, as required by the court’s amended scheduling order. The
plaintiff’s request was untimely, and the court will deny the plaintiff’s motion to
compel.
In addition, the court notes that the plaintiff has received the requested
information. Dkt. No. 176 at 2. The canteen and medical co-pay receipts were
attached to the Affidavit of Kim Manna, dkt. no. 168, that the defendants filed
in support of their motion for summary judgment. Dkt. No. 176 at 2. The
defendants produced the bed and cell assignment information to the plaintiff in
response to a request asking for the same information in Case No. 14-cv-1078
(E.D. Wis.). Id.
10.

Butler’s Motion to Strike Plaintiff’s Proposed Findings of Fact (Dkt. No.
160)
The court already has discussed the nurse defendants’ motion to strike

the proposed findings of fact that the plaintiff filed on November 17, 2016.
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About a week after the plaintiff filed them, defendant Butler filed a separate
motion to strike those same proposed findings. Dkt. No. 160. For the reasons
the court stated in denying the nurse defendants’ motion, the court will deny
Butler’s motion to strike. Again, however, the court notes that the defendant
does not need to respond to the November 17, 2016 proposed findings of fact.
11.

Plaintiff’s Motion for Extension of Time (Dkt. No. 171)
On November 28, 2016, the court received a motion that the plaintiff

called “Motion Under Federal Civil Procedure 56 Rule,” and that the court
docketed as a motion for extension of time. Dkt. No. 171. Apparently several
exhibits the plaintiff referenced in his motion for summary judgment were not
attached to his original motion. He submitted copies of three of the exhibits,
and asked for sixty days to obtain new copies of the remaining exhibits—
particularly Exhibit 42A, Dr. Hoftiezer’s physician notes regarding “plaintiff’s
deplorable health in the 4 months he spent at the Kenosha County Jail.” Id.;
Dkt. No. 112 at 8. The court has reviewed, and will accept, the exhibits the
plaintiff originally submitted with his motion for summary judgment, dkt. no.
112-1, and those that he submitted with this motion, dkt. no. 171-1.
The court will deny the plaintiff’s request for additional time to obtain
more documents. The discovery deadline expired some ten months ago. In that
time, the plaintiff was able to obtain and submit treatment notes from Dr.
Hoftiezer, and he could have submitted any additional treatment notes in the
eight months since he filed this motion. Because he has not done so, the court

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will limit the plaintiff to the record currently before the court when it considers
the parties’ motions for summary judgment.
12.

Plaintiff’s Motion to Strike Response to his Motions (Dkt. No. 180)
On December 8, 2016, the court received from the plaintiff an objection

and motion to strike. Dkt. No. 180.
On November 18, 2016, the court received from the nurse defendants a
brief in opposition to the plaintiff’s motion for an extension of time, motion for
leave to file excess pages, and motion for summary judgment. Dkt. No. 144. In
his December 8, 2016 objection and motion to strike, the plaintiff asked the
court to deem this response moot, because the attorney for the nurse
defendants does not represent all of the defendants in the entire case. Dkt. No.
180 at 1. The court will deny the motion to strike; any party may respond to
the opposing party’s motions. And the nurse defendants’ response primarily is
their brief in response to the plaintiff’s motion for summary judgment, and
contains only passing reference to the other motions motions.
The plaintiff also asked the court to give him until March 17, 2017 to
respond to the Kenosha County defendants’ motion for summary judgment.
Dkt. No. 180 at 1-2. He argued that he would be out of segregation by then,
and would better be able to prepare his response. Id. Yet, as is the case with
other motions for extensions of time the plaintiff has filed, he managed to
timely file his response without an extension. The court received the plaintiff’s
materials in opposition to the Kenosha County defendants’ motion for

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summary judgment on December 19, 2016. Dkt. Nos. 193-96. This renders the
plaintiff’s request moot.
13.

Plaintiff’s Motion Under Rule 43(A), Et Al. (Dkt. No. 206)
Finally, on January 24, 2017, the court received from the plaintiff a

document entitled “Motion Under Fed. R. Civ. P. 43(A), 614(A) & 801(d)(2)(A).”
Dkt. No. 206. He asks to submit four pages of evidence regarding his cane
being taken away. Id. Neither Rule 43(a) (which deals with testimony taken in
open court), nor Federal Rule of Evidence 614(a) (entitled “Court’s Calling or
Examining a Witness”), nor 801(d)(2)(A) (indicating that a declarant-witness’s
prior statement is not hearsay) apply relate to the real question the plaintiff is
asking: whether he can file additional documents after the parties’ motions for
summary judgment have been fully briefed. Nevertheless, in the interest of
giving the plaintiff, who is representing himself, an opportunity to present
evidence to the court in support of and in opposition to motions for summary
judgment, the court will grant this motion, and will consider the documents the
plaintiff submitted.
CONCLUSION
The court DENIES WITHOUT PREJUDICE the plaintiff’s third motion to
appoint counsel. Dkt. No. 102.
The court DENIES the plaintiff’s motion to compel. Dkt. No. 103.
The court DENIES AS MOOT the plaintiff’s motion for extension of time.
Dkt. No. 138.

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The court DENIES AS MOOT the plaintiff’s motion for leave to file excess
pages. Dkt. No. 139.
The court DENIES the plaintiff’s Rule 62(B) motion to stay. Dkt. No. 140.
The court DENIES the plaintiff’s motion to strike the Kenosha County
defendants’ motion for summary judgment. Dkt. No. 146.
The court DENIES the plaintiff’s motion to strike the nurse defendants’
motion for summary judgment. Dkt. No. 147.
The court DENIES the nurse defendants’ motion to strike the plaintiff’s
proposed findings of fact. Dkt. No. 151.
The court DENIES the plaintiff’s motion to compel. Dkt. No. 152.
The court DENIES defendant Karen Butler’s motion to strike the
plaintiff’s proposed findings of fact. Dkt. No. 160.
The court DENIES the plaintiff’s motion for extension of time. Dkt. No.
171.
The court DENIES the plaintiff’s motion to strike. Dkt. No. 180.
The court GRANTS the plaintiff’s motion under Rule 43(A), et al.. Dkt.
No. 206.
Dated in Milwaukee, Wisconsin this 30th day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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