Earl v. Foster et al

Filing 73

ORDER signed by Judge Pamela Pepper for Judge Rudolph T. Randa on 4/29/2016. 58 Plaintiff's MOTION to Compel DENIED as moot. 59 Plaintiff's MOTION to Extend Discovery Deadline DENIED; Dispositive Motions now due 6/1/2016. 60 Plainti ff's MOTION to Compel DENIED in part; Defendants to deliver copy of defendant Karl's termination documentation with 14 days, the Court will review documents in camera to determine whether they should be produced to the plaintiff. 60 Plaintiff's MOTION to Appoint Counsel DENIED without prejudice. (cc: all counsel, via mail to Daryise Earl at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DARYISE L. EARL,
Plaintiff,
-vs-

Case No. 15-CV-282

BRIAN FOSTER, et al.,
Defendants.

DECISION AND ORDER
The plaintiff, a Wisconsin state prisoner who is representing himself,
filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were
violated. On March 23, 2016, the plaintiff filed a second motion to compel. On
April 1, 2016, he filed a motion to extend the discovery deadline and a third
motion to compel, which included a request that the Court recruit counsel to
represent him. The plaintiff explained in his third motion to compel that the
defendants provided additional information following his second motion to
compel.

He asks the Court to dismiss the second motion to compel and

address only the arguments in his third motion to compel. The Court grants
the plaintiff’s request and dismisses the plaintiff’s second motion to compel as
moot.

I. Third Motion to Compel
In his third motion to compel, the plaintiff asks the court to compel the
defendants to provide him the following: 1) all inmate complaints regarding
the provision of medical ice; 2) various progress notes, incident reports, and/or
logbooks that the defendants have stated do not exist; and 3) documentation of
the misconduct that led to defendant Richard Karl’s termination from Green
Bay Correctional Institution. The Court will address each of these in turn.
A. Inmate Complaints Regarding the Provision of Medical Ice
The plaintiff has sought inmate complaints written in regards to
officers refusing or ignoring requests for medical ice that had been prescribed
by medical staff. He argues that this evidence is relevant to establishing the
officers’ habit of denying such requests.

The defendants argue (without

support) that habit and routine evidence is generally not admissible to prove
that one acted in compliance therewith on any given date.
Federal Rule of Evidence 406 states: “Evidence of a person’s habit or
an organization’s routine practice may be admitted to prove that on a
particular occasion the person or organization acted in accordance with the
habit or routine practice. The court may admit this evidence regardless of
whether it is corroborated or whether there was an eyewitness.”
The problem is that although Rule 406 does permit evidence of one’s
habit or routine, the documents that the plaintiff seeks will not establish that

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a habit or routine exists. Imagine that on fifty occasions inmates complained
that they did not receive medical ice. This number, in isolation, may appear
significant; however, it is meaningful only if placed in context, the context
being how many total times ice was prescribed. If inmates were prescribed ice
on 500 occasions, then those fifty denials seem far less significant.

What

initially seemed like a habit, is now nothing more than a series of bad acts,
and Federal Rule of Evidence 404(b) is clear that prior bad acts are not
admissible to show that on a particular occasion the person acted in a similar
manner.
Thus, for the information the plaintiff seeks to be meaningful, the
plaintiff would need not only every inmate complaint made about the denial of
medical ice but also information about how many times medical ice was
prescribed.

Providing such information would place an incredible, and

unjustifiable, burden on the defendants. They have already explained that
“ICE” is the acronym for “Inmate Complaint Examiner,” so running a search
for “ice” will uncover literally thousands of complaints, most of which having
nothing to do with medical ice. In addition, determining how many times
medical ice has been prescribed will require the defendants to search through
every inmate’s medical file. Given the limited value of this information and
the likelihood that its admissibility would be barred by Rule 404(b), the Court
concludes that placing such a significant burden on the defendants is

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unwarranted. The Court denies the plaintiff’s request to compel the
defendants to produce this information.
B. Progress Notes, Incident Reports, and/or Logbooks
The plaintiff believes that the defendants are withholding documents.
The defendants have told the plaintiff (on multiple occasions) and the Court
that the documents do not exist. The plaintiff explains why he believes he is
being stonewalled, but his explanations amount to little more than
speculation. The Court cannot compel the defendants to produce documents
they do not have.
C. Richard Karl’s Termination Documentation
The plaintiff argues that documentation relating to Karl’s termination
from Green Bay Correctional is relevant to the issues in this lawsuit because
it will establish Karl’s “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” The defendants reject
this argument, explaining that Karl was not terminated in any way related to
the plaintiff’s allegations and he was not terminated for any reason related to
his truthfulness as an officer.
The Court cannot determine whether the documents are relevant to the
plaintiff’s claims without reviewing them. To that end, the Court will review
these documents in camera to determine whether they reveal information
relevant to the plaintiff’s claims and therefore should be produced to the

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plaintiff.

The defendants shall deliver a copy of these documents to the

Court’s chambers within fourteen days of this order.
II.

Motion to Extend the Discovery Deadline
The plaintiff asks that the Court extend the discovery deadline by an

additional forty-five days.

The Court has already extended the discovery

deadline by two months, and it does not believe that further extensions are
necessary. That said, the Court understands that in the event it orders the
defendants to produce the termination documents, the plaintiff may wish to
rely on those in either preparing or responding to a summary judgment
motion.

For that reason, the Court will extend the dispositive motion

deadline by thirty days, until June 1, 2016.
III.

Motion for the Appointment of Counsel
The plaintiff has also asked the Court to recruit counsel to represent

him.

The Court has denied two previous requests for counsel, and the

plaintiff presents no new information requiring the Court to reconsider those
decisions.

Based on the plaintiff’s filings to date, which are thorough,

organized, and easy to understand, the Court continues to believe that the
plaintiff is capable of proceeding on his own at this time.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s second motion to compel (ECF
No. 58) is DENIED as moot.

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IT IS ALSO ORDERED THAT the plaintiff’s motion to extend the
discovery deadline (ECF No. 59) is DENIED.
IT IS FURTHER ORDERED THAT the dispositive motion deadline
is extended to June 1, 2016.
IT IS ALSO ORDERED THAT the plaintiff’s third motion to compel
(ECF No. 60) is DENIED in part. The defendants shall deliver a copy of
defendant Karl’s termination documentation within fourteen days of this
order. The Court will review the documents in camera to determine whether
production to the plaintiff is required.
IT IS FURTHER ORDERED THAT the plaintiff’s motion for the
appointment of counsel (ECF No. 60) is DENIED WITHOUT PREJUDICE.
Dated at Milwaukee, Wisconsin, this 29th day of April, 2016.

BY THE COURT:

s/ Pamela Pepper
for HON. RUDOLPH T. RANDA
U.S. District Judge

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