Hewing et al v. State of Wisconsin et al

Filing 42

ORDER signed by Judge Pamela Pepper on 6/23/2017. 39 Plaintiff's MOTION for Discovery/MOTION to Appoint Counsel DENIED without prejudice. If plaintiff wants to oppose defendants' motion to dismiss/motion for summary judgment, brief and supporting documents must be received by the court by end of day 8/7/2017. (cc: all counsel, via mail to Marqueal Hewing at Stanley Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MARQUEAL HEWING,
Plaintiff,
v.

Case No. 15-cv-753-pp

THOMAS OZELIE, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING THE PLAINTIFF’S MOTION FOR
INTERROGATORY DISCOVERY AND MOTION TO APPOINT COUNSEL (DKT.
NO. 39), AND ORDERING THE PLAINTIFF TO FILE HIS RESPONSE TO THE
DEFENDANTS’ MOTION TO DISMISS/MOTION FOR SUMMARY JUDGMENT
BY AUGUST 7, 2017
______________________________________________________________________________
The plaintiff filed this lawsuit on June 22, 2015. Dkt. No. 1. The court
required him to amend the complaint several times; he filed his second
amended complaint on October 17, 2016. Dkt. No. 23. The court screened that
complaint, and allowed the plaintiff to proceed on a single claim: that Thomas
Ozelie and Allan Tenhaken arrested him without probable cause in violation of
the Fourth Amendment. Dkt. No. 24 at 7. The plaintiff also asserted in his
complaints that he did not get a probable cause hearing within forty-eight
hours of his arrest; although the court allowed him to try three times, the
plaintiff never stated who it was who prevented him from getting a timely
probable cause hearing, and the court did not allow him to proceed on that
claim. Id. at 6.

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On April 3, 2017, defendants Thomas Ozelie and Allan Tenhaken filed a
combined motion to dismiss under Fed. R. Civ. P. 12(b)(6) and motion for
summary judgment. Dkt. No. 34. The defendants filed this motion as a
response to the plaintiff’s second amended complaint (dkt. no. 23). The
defendants attached to that motion a copy of the local rules governing motions
for summary judgment, dkt. no. 34 at 2; Civil L.R. 56(c) requires a party who
opposes a motion for summary judgment to file his brief and other documents
within thirty (30) days of service of the motion. The defendant served the
motion on April 3, 2017, dkt. no. 37, which means the plaintiff’s response was
due May 3, 2017. As of today’s date, the plaintiff has not filed a response.
On May 1, 2017, however, the plaintiff filed a document which he called
“motion for interrogatory discovery and motion to appoint counsel.” Dkt. No.
39. The plaintiff indicates that he believes his case is very complex to handle,
and that he’s been trying to handle it himself, with help from jailhouse lawyers.
He says he did not realize the case would be so difficult. He asks if he is able to
“retain” a lawyer, and if he can “put in a motion for an interrogatory discovery.”
Id. at 1. He also asks for some time to go over the discovery material, to help
him provide the court “with the names of the defendants involved in the
process of scheduling the probable cause hearing.” Id. He says that he never
had a chance to challenge the legitimacy of his criminal case. Id.
The defendants object to the second part of the plaintiff’s request—the
part where he asks to file interrogatory discovery, and to have time to review
the responses. Dkt. No. 40. The defendants argue that one of the documents
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they filed in support of the motion to dismiss/motion for summary judgment is
a document that shows that the plaintiff did get a probable cause hearing
within forty-eight hours of his arrest, and that there is evidence which shows
that the defendants had probable cause to arrest the plaintiff. Given that, the
defendant argues, the plaintiff cannot prevail whether he names two
defendants or ten. Id. at 2-4. The defendants do not object to the court giving
the plaintiff additional time to respond to their motion.
A.

Motion to Appoint Counsel
In a civil case, the court has discretion 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). However, the litigant first must make reasonable efforts to hire
private counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
In order to demonstrate this, the plaintiff must provide the court with proof
that he has contacted at least three lawyers and asked them to represent him,
and that they have declined. A plaintiff may demonstrate this by providing the
court with a list of the names and addresses of the attorneys he has contacted,
or with copies of their rejection letters.
The plaintiff has not satisfied the first Pruitt factor—he has not provided
the court with any proof that he has tried to find an attorney on his own. The
court will deny without prejudice the plaintiff’s motion to appoint counsel; this
means that he can renew the motion once he has made attempts to find a
lawyer himself.
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B.

Request to Conduct Interrogatory Discovery

Regarding the plaintiff’s request to “put in a motion for interrogatory
discovery” to identify the John Does who failed to schedule his probable cause
hearing, the plaintiff’s request is premature. The plaintiff first must respond to
the defendants’ motion to dismiss/motion for summary judgment. It may be
that, in reading through the documents the defendants filed in support of their
motion to dismiss/motion for summary judgment, the plaintiff may find out the
names of some of the people who were involved in setting probable cause
hearings. Regardless, if the court denies the defendants’ motion, the court will
enter a scheduling order, which will include deadlines for conducting discovery
and filing other kinds of motions.
C.

Plaintiff’s Response to the Defendants’ Motion

As the court noted above, the defendants have filed a motion to dismiss
this case and, in the alternative, have asked the court to grant summary
judgment in their favor. Dkt. No. 34. If the plaintiff wants to go forward with
the case—if he wants the court to deny the defendants’ motion—his next step
is to file a brief in opposition to the motion, explaining why the court should
not dismiss the case. The plaintiff should be able to look at the documents that
the defendants have filed—their motion, their brief, the declaration of their
lawyer, and the documents attached to that declaration—and explain, in plain
English, why those documents fail to show that the defendants had probable
cause to arrest the plaintiff. He does not have to use fancy legal language, or
even cite case law. He simply can explain why the documents don’t show
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probable cause, and if he has any documents (including his own affidavit) that
support his arguments, he should file those, as well. The court will give the
plaintiff time to file these documents.
D.

Conclusion

The court DENIES WITHOUT PREJUDICE the plaintiff’s motion for
interrogatory discovery and motion to appoint counsel. Dkt. No. 39.
The court ORDERS that if the plaintiff wants to oppose the defendants’
motion to dismiss/motion for summary judgment, he should file his brief and
supporting documents in time for the court to receive them by the end of the
day on August 7, 2017.
Dated in Milwaukee, Wisconsin this 23rd day of June, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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