Wheeler v. Radtke et al

Filing 81

DECISION AND ORDER signed by Judge Lynn Adelman on 1/13/16 that plaintiffs motion for summary judgment 27 is WITHDRAWN pursuant to plaintiffs request to withdraw 69 . Further ordering that plaintiffs motion to compel discovery 32 is DENIED; tha t plaintiffs motion to appoint counsel 34 is DENIED; that defendants motion to stay briefing on plaintiffs motion for summary judgment 36 is DENIED AS MOOT; that defendants motion for protective order 37 is GRANTED; that defendants motion to fi le documents ex parte and under seal 40 is GRANTED; that plaintiffs motion to produce the name of the witness/informant 45 is DENIED; that plaintiffs request for deposition transcript or motion for order directing release of deposition transcript 57 is DENIED; that plaintiffs second motion to appoint counsel 61 is DENIED; and that plaintiffs motion for telephone conference 75 is DENIED. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TINGIA D. WHEELER,
Plaintiff,
v.

Case No. 15-CV-95

CAPTAIN CYNTHIA RADTKE, BRET MIERZEJEWSKI,
WILLIAM POLLARD, and WARDEN GARY BOUGHTON,
Defendants.

DECISION AND ORDER
The pro se plaintiff, Tingia D. Wheeler, is a Wisconsin state prisoner. He filed a
second amended complaint (Dkt. No. 25) alleging that: (1) defendants Radtke and
Mierzejewski issued him a retaliatory conduct report; (2) defendants Radtke and
Mierzejewski interfered with his mail in violation of the First Amendment; (3) defendants
Radtke and Mierzejewski suppressed evidence favorable to him during two disciplinary
hearings on conduct reports, in violation of the Due Process Clause of the Fourteenth
Amendment; and that he was issued a retaliatory transfer to the Wisconsin Secure
Program Facility for filing this lawsuit. The parties have filed several motions, which I will
address in this order.1
Plaintiff’s Motion for Summary Judgment
On August 13, 2015, plaintiff filed a motion for summary judgment (Dkt. No. 27).
Defendants subsequently filed a motion to stay briefing on the motion for summary

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I will address defendants’ motion to dismiss plaintiff’s due process and retaliatory
conduct report claims in a subsequent order.

judgment (Dkt. No. 36). However, on November 19, 2015, plaintiff filed a letter requesting
to withdraw his summary judgment motion (Dkt. No. 69). I will grant plaintiff’s request to
withdraw the motion, and deny as moot defendants’ motion to stay briefing.
Discovery-Related Motions
A.

Plaintiff’s Motion to Compel
On August 17, 2015, plaintiff filed a motion to compel discovery (Docket No. 32).

He states that defendants did not respond to his July 14, 2015, discovery request. In
response, defendants contend that I should deny the motion because plaintiff has not
certified that he attempted to confer with them before filing his motion to compel, as
required. See Fed. R. Civ. P. 37(a)(1); Civil L.R. 37 (E.D. Wis.). Defendants also contend
that I should deny plaintiff’s motion because they timely responded to the discovery
requests. Because defendants timely responded to plaintiff’s discovery, see Docket No.
42 (Bresette Decl. ¶ 4, Ex. C), and because plaintiff failed to comply with the applicable
procedural rules, I will deny his motion to compel.
B.

Defendants’ Motion for Protective Order and Motion to Seal
On September 4, 2015, defendants filed a motion for a protective order (Docket No.

37) in which they request that plaintiff be prevented from using discovery to learn
information prison officials kept from him for security reasons. Specifically, they ask that
plaintiff be prevented from seeing the letters that formed the basis of Conduct Report
2481117, and from learning the identities of the recipients of those letters. Defendants
filed a separate motion requesting that Exhibit B from the Declaration of Cynthia Radtke,
the letters that are the subject of the requested protective order, be filed under seal and
ex parte for in camera review (Docket No. 40). Defendants contend that the proposed
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discovery is outside the scope of Federal Rule of Civil Procedure 26(b)(1) in that it creates
a burden that outweighs any benefit.
The court must limit the frequency or extent of discovery if it determines that the
proposed discovery is outside the scope permitted by Rule 26(b)(1). See Fed. R. Civ. P.
26(b)(2)(C)(iii). The scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope need not be
admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Plaintiff received Conduct Report 2481117, charging him with threats, in violation
of Wis. Admin. Code § DOC 303.76, based on his efforts to identify and harm confidential
informants who provided information regarding plaintiff’s alleged gang activities. (See Dkt.
No. 38 at 4-6.) Allowing plaintiff to learn “the names of each recipient of a letter from the
plaintiff that makes up the body of conduct report #2481117" could place an unnecessary
burden on prison security and could place the letter recipients in danger. (Dkt. No. 38 at
6.) Moreover, a protective order will not harm plaintiff because he already has a copy of
Conduct Report 2481117, which describes the content of the letters that resulted in the
issuance of the conduct report. (See Dkt. No. 10 at 6-9.) Accordingly, I will also grant
defendants’ motion to submit documents ex parte and under seal.
C.

Plaintiff’s Motion to Produce Name of Witness

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On September 10, 2015, plaintiff filed a motion pursuant to Roviaro v. United States,
353 U.S. 53 (1957), in which he requests that the court disclose the identity of a
confidential informant (Docket No. 45). Plaintiff asserts that he needs the name of an
informant/witness known as “Will” for a fair determination of his case.
Defendants oppose the motion. According to the defendants, the government’s
interest in preserving the confidentiality of the informant is greater than any legitimate
interest plaintiff may have in learning his identity. See Mendoza v. Miller, 779 F.2d 1287,
1294 (7th Cir. 1985). Defendants also assert that plaintiff will not be prejudiced in this
litigation by not knowing the identity of the confidential informants because his complaint
fails to state a due process claim related to Conduct Report 2303800. Also, defendants
cite to plaintiff’s failure to explain why “Will’s” identity is important for a fair determination,
or how having the identity will help him prove that defendants withheld exculpatory
evidence.
At this point, I will not require the defendants to identify the confidential witness.
Allowing plaintiff to learn the identity of a confidential informant could result in physical
harm to the confidential informant and could compromise prison security.
D.

Plaintiff’s Motion to Waive Privilege of Deposition
Plaintiff has filed a motion in which he requests that “counsel waive the privilege of

the deposition in Prude v. Pollard, 2014 U.S. Dist. Lexis 89991 (W.D. Wis.) or the court
order such deposition be released to plaintiff.” (Dkt. No. 57 at 1). It is not clear what the
plaintiff is asking for. It seems that he is asking to be allowed to obtain a copy of a
deposition that was taken in the Prude case. However, as far as the record reveals, the
plaintiff does not need this court’s permission to obtain that deposition. In any event, I am
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unaware of any rule of law that would allow me to compel another federal court to grant the
plaintiff access to a deposition taken under the authority of that court. For this reason, I
will deny the plaintiff’s motion.
Motions to Appoint Counsel
Plaintiff has filed two motions to appoint counsel (Docket Nos. 34, 61). In the first
motion, he contends that his case has merit, that he has difficulty investigating the facts
because defendants claim he is attempting to gain knowledge of privileged information,
that conflicting evidence will make it difficult for him to try the case on his own, and that he
cannot obtain all of the discovery he needs without an attorney. In plaintiff’s second motion
to appoint counsel, he states that he needs an attorney due to the long-term effects of
administrative confinement. Plaintiff asserts that he has been in segregation for thirty-four
consecutive months and that he is losing grip with reality.
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 his 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 litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id.
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Plaintiff has not demonstrated that he attempted to find an attorney on his own.
Thus, because he has not made a reasonable attempt to find an attorney, I will deny his
motion on that threshold ground. I also note that even if plaintiff had attempted to find an
attorney on his own, his filings demonstrate that, considering the nature of the case, he
is very capable of representing himself at this time. Notably, plaintiff filed a comprehensive
motion for summary judgment on January 4, 2016. Based on the foregoing, I will deny
plaintiff’s motion for summary judgment.
Motion for Telephone Conference
Plaintiff has filed a motion for telephone conference. He asserts that he has
identified a confidential informant who will support his due process and retaliatory conduct
report claim against defendant Radtke. Plaintiff states that a telephone conference will
permit defendants to cross-examine the confidential informant. Plaintiff has submitted Mr.
Seward’s affidavit along with his motion. Defendants may respond to these materials.
However, a telephone conference is not necessary at this stage of the proceedings.
ORDER
THEREFORE, IT IS ORDERED that plaintiff’s motion for summary judgment
(Docket No. 27) is WITHDRAWN pursuant to plaintiff’s request to withdraw (Docket No.
69).
IT IS FURTHER ORDERED that plaintiff’s motion to compel discovery (Docket No.
32) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket No.
34) is DENIED.

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IT IS FURTHER ORDERED that defendants’ motion to stay briefing on plaintiff’s
motion for summary judgment (Docket No. 36) is DENIED AS MOOT.
IT IS FURTHER ORDERED that defendants’ motion for protective order (Docket No.
37) is GRANTED.
IT IS FURTHER ORDERED that defendants’ motion to file documents ex parte and
under seal (Docket No. 40) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to produce the name of the
witness/informant (Docket No. 45) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s request for deposition transcript or motion
for order directing release of deposition transcript (Docket No. 57) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s second motion to appoint counsel
(Docket No. 61) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for telephone conference (Docket
No. 75) is DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of January, 2016.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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