Smith v. Foster et al

Filing 90

ORDER signed by Judge Pamela Pepper on 2/21/2017 GRANTING 68 the defendants' motion for leave to file excess pages; DENYING 85 the plaintiff's motion for summary judgment; DENYING 87 the defendants' motion to strike plaintiff's motion for summary judgment; and GRANTING 88 the plaintiff's motion for a copy of the docket. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DERRICK L. SMITH,
Plaintiff,
v.

Case No. 16-cv-84-pp

BRIAN FOSTER, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE DEFENDANT’S
MOTION FOR LEAVE TO FILE EXCESS PAGES (DKT. NO. 68);
DENYING THE PLAINTIFF’S DISPOSITIVE MOTION (DKT. NO. 85);
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE THE
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 87); AND
GRANTING THE PLAINTIFF’S MOTION FOR A COPY OF THE DOCKET
(DKT. NO. 88)
______________________________________________________________________________
On January 3, 2017, the defendants filed a motion for summary
judgment, dkt. no. 68, and a motion for leave to file excess pages, dkt. no. 69.
Six days later, the court entered an order extending the deadline to March 3,
2017, for the plaintiff to respond to the defendants’ motion for summary
judgment. Dkt. No. 84. That same day, the court received the plaintiff’s motion
for summary judgment. Dkt. No. 85. About ten days after the court received
the plaintiff’s motion, the defendants filed a motion to strike the plaintiff’s
summary judgment motion. Dkt. No. 87. The defendants argued that it wasn’t
really a motion—just a statement from the plaintiff that he doesn’t know what
a summary judgment motion is. Id. The following day, the court received a
motion from the plaintiff asking for various clarifications, explaining problems

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he was having with obtaining his personal property, and detailing discovery
disputes he has had with the defendants. Dkt. No. 88. Ultimately, the only
relief that the plaintiff requested was for the court to send him “a copy of
docket entries.” Id.
The court will grant the defendants’ motion to file pages in excess of the
thirty-page limit set in Civil Local Rule 56(b)(8). Dkt. No. 68. The court reminds
the defendants that they should file such requests prior to filing their motion,
not at the same time. Regardless, given the number of defendants and claims,
the court agrees that the defendants need additional pages to fully present
their arguments.
The court will deny as moot the defendants’ motion to strike plaintiff’s
motion for summary judgment, dkt. no. 87, because the court will deny the
plaintiff’s motion, dkt. no. 85. The plaintiff addressed this pleading to the
court, and in the “re:” line, indicated, “Dispositive Motino, #16-cv-84 Federal
Lawsuit.” Dkt. No. 85 at 1. In the first paragraph, the plaintiff states that he is
submitting his pro se “dispositive motion” for the court to consider. Id. The
plaintiff then says,
But first Smith would like to take this opportunity to
again apologize to this Court for the presentation of this,
his prehistoric condition of the pro se motion he submits.
Being housed at the County Jail has a lot of challenges
for him to overcome, if he is able to overcome them at all.
Yet he ensures this Court that he is doing the best he can
with the very little he has to work with. The Jail will only
allow him to use pen & paper for his legal proceedings.
Smith asserts that due to the Jail’s inadequately
stocked Law Library he can find no information on what a
dispositive motion is or how to develop one. Because of
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that he motion[s] for this court to preserve his
ability/right to submit a Dispositive Motion and prayfully
Discovery requests at a later date.
Smith prays for this Court’s understanding and
patience while considering to grant this his pro se
dispositive motion, thank you.
Id. at 1-2.
This is not, as the defendants point out, a motion for summary
judgment. It is a statement by the plaintiff that he does not know what a
dispositive motion is, and a request that the court extend the deadline for filing
such a motion until he figures that out.
On May 16, 2016, the court entered a scheduling order setting the
deadline for filing dispositive motions. Dkt. No. 43. In paragraph 2 of the order,
the court defined the term “dispositive motions.” Id. at 1. It indicated that
dispositive motions were motions to dismiss under Federal Rule of Civil
Procedure 12 and motions for summary judgment under Federal Rule of Civil
Procedure 56. Id. The court included with the order copies of F.R.C.P. 12,
F.R.C.P. 56, and the court’s local rules relating to dispositive motions. Id. The
defendants included the same rules in their motion for summary judgment,
which they filed on January 3, 2017. Dkt. No. 69.
The court’s order set the deadline for filing dispositive motions for
September 16, 2016. Dkt. No. 43 at 1. That gave the plaintiff four months to
look in the library for cases and other information about motions to dismiss
and motions for summary judgment. At the defendants’ request, the court
extended that deadline to October 17, 2016, dkt. no. 46, giving the plaintiff
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(and the defendants) an additional month. The court extended the deadline
again—this time, to January 3, 2017—after ruling on the plaintiff’s motion for
reconsideration. Dkt. No. 59. The court received the plaintiff’s explanation that
he didn’t know what a dispositive motion was on January 9, 2017—six days
after the deadline for filing dispositive motions, and almost eight months after
the court had sent him the scheduling order with the attached rules. By the
time the court received the plaintiff’s (late-filed) motion, he had had almost
eight months to look for cases that described a motion to dismiss, or a motion
for summary judgment, and to decide if the facts and law in his case warranted
him filing either one of those.
The court will deny the plaintiff’s dispositive motion, dkt. no. 85, and will
not give him additional time to file another. The court reminds the plaintiff that
his response to the defendants’ motion for summary judgment is due on March
3, 2017.
Finally, on January 20, 2017, the court received from the plaintiff a
document entitled “Plaintiff’s Notice of Motion & Motion for a Full Copy of the
DOCKET ENTRIES case #16-cv-84.” Dkt. No. 88. While this document is
lengthy and details many administrative hurdles the plaintiff believes he is
facing, he seems to have included all of that information for the purpose of
putting the court on notice. The only relief the plaintiff requests is a copy of the
docket. The court will grant that request.
The plaintiff also asks two questions with regard to the mechanics of
dockets: 1) whether every activity by a party and the court gets a separate
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docket entry; and 2) what the gavel next to a docket number means. As to the
first question, yes, the clerk of court makes a separate entry on the docket for
every document that a party files and every decision or order the court enters.
The clerk of court adds documents to the docket in the order that he receives
them. With regard to the plaintiff’s second question, the gavel next to a docket
number means that the filed document is a motion that requires a decision
from the court. Once the court issues an order that resolves that motion, the
clerk of court removes the gavel.
The court GRANTS the defendants’ motion for leave to file excess pages
(dkt. no. 68).
The court DENIES the plaintiff’s motion for summary judgment (dkt. no.
85).
The court DENIES as moot the defendants’ motion to strike the plaintiff’s
motion for summary judgment (dkt. no. 87).
The court GRANTS the plaintiff’s motion for a copy of the docket (dkt. no.
88). The court will send a copy of the docket to the plaintiff.
Dated in Milwaukee, Wisconsin this 21st day of February, 2017.

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