Spencer v. City of Milwaukee Police Department et al

Filing 116

ORDER signed by Chief Judge Pamela Pepper on 2/3/2020. 78 Plaintiff's pro se motion to compel DENIED without prejudice. Dispositive motions deadline set for 3/6/2020. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JERPAUL D. SPENCER,
Plaintiff,
v.

Case No. 16-cv-662-pp

EDWARD A. FLYNN, MICHAEL VAGNINI,
JACOB KNIGHT, JEFFREY KLINE,
PAUL MARTINEZ, GREGORY M. KUSPA,
JESSE BUSHARDT, MICHAEL VALUCH,
and KEITH GARLAND,
Defendants.
______________________________________________________________________________
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO
COMPEL DISCOVERY (DKT. NO. 78) AND SETTING DEADLINE FOR
DISPOSITIVE MOTIONS
______________________________________________________________________________
Representing himself, the plaintiff filed this case on June 6, 2016. Dkt.
No. 1. He worked hard to represent himself; there was a lot of litigation.
On November 8, 2018, counsel filed an appearance for the plaintiff. Dkt.
No. 95. The court held a status conference on February 5, 2019, noting that
the plaintiff had filed three motions prior to counsel joining the case, and that
it had begun drafting an order ruling on those motions. Dkt. No. 102. The
parties told the court, however, that they had agreed to participate in
mediation, and plaintiff’s counsel told the court that it need not rule on the
pending motions until after mediation, and until after he’d had a chance to
review the motions (counsel speculated he might be able to narrow the scope of

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the motions, or withdraw some). Id. The court agreed to refer the case for
mediation. Id.
On May 15, 2019, Magistrate Judge Duffin reported that the parties had
not been able to settle through mediation. Dkt. No. 109. That same day, the
plaintiff’s lawyer filed an expedited motion to open discovery and allow him to
depose witnesses. Dkt. No. 110. The motion indicated that counsel recognized
that discovery had closed and would agree to limit depositions to four hours or
less. Id. at 2.
The court held a hearing on June 13, 2019. Dkt. No. 113. The court
again raised the fact that the plaintiff, before counsel came on board, had filed
three motions, which the court had not ruled on because the parties wanted to
mediate. Id. at 1. The court again asked whether plaintiff’s counsel needed the
court to rule on the motions. Counsel responded that the motion to use
depositions from other cases (Dkt. No. 90) was moot, and that his new motion
to reopen discovery had mooted the plaintiff’s pro se request for the same relief
(Dkt. No. 89). Id. That left only the plaintiff’s pro se motion to compel, at Dkt.
No. 78. The court told the parties that it had a draft order ruling on that
motion, but that it would give plaintiff’s counsel an opportunity to review the
motion and determine whether he wanted the court to rule or whether he
wanted to consider other options. Id. The court also observed that the plaintiff’s
motion to reopen discovery (Dkt. No. 89) asked for documentary discovery,
while counsel’s motion (Dkt. No. 110) asked to take depositions. Id. at 1-2.

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The upshot of all this was that the parties agreed to the court setting a
new schedule. Id. at 2. The court deferred ruling on the plaintiff’s pro se motion
to compel (Dkt. No. 78), denied the other two pro se motions as moot (Dkt. Nos.
89, 90), granted counsel’s motion to reopen discovery (Dkt. No. 110) and set a
new schedule. Id. That schedule required the parties to complete discovery by
October 31, 2019 (four and a half months out); to disclose the plaintiff’s
experts by October 31, 2019; to disclose defense experts by January 3, 2020;
and to appear for a status conference on January 23, 2020. Id.
On January 16, 2020, the court cancelled the January 23, 2020 status
conference because it would be in trial that week; it ordered the parties to
submit a joint status report advising the court of the status of the case and
outlining next steps. Dkt. No. 114. The parties filed that joint status report on
January 23, 2020. Dkt. No. 115.
The plaintiff’s portion of the report indicates that the plaintiff wants to
conduct “several additional depositions,” including one of the defendants, “one
or two” doctors who were present at the hospital when the plaintiff’s stomach
was pumped, and “a still unidentified female police officer who relieved two of
the defendants at the hospital.” Id. at 1. The report indicates that plaintiff’s
counsel believes this can be accomplished in “60 days or so.” Id.
Defense counsel “vigorously” opposes the request. Id. Counsel notes that
plaintiff’s counsel requested additional time for discovery at the scheduling
conference the court held on June 13, 2019. Dkt. No. 113. The court granted
the request and permitted the parties to conduct discovery through October 31,
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2019. Id. The defendants assert that plaintiff’s counsel could have conducted
the depositions during that time. Id. Defense counsel also notes that she
contacted plaintiff’s counsel by email before the deadline for completing
discovery to schedule the deposition of defendant Kuspa “and never heard back
from [plaintiff’s counsel].” Id. at 2. Defense counsel asks the court to set a
dispositive motion deadline. Id.
The original deadline for completing discovery was February 1, 2017.
Dkt. No. 27. Judge Charles N. Clevert, Jr., to whom the case previously was
assigned, granted the plaintiff’s motion to extend that deadline by sixty days.
Text Only Order, January 26, 2017. On March 7, 2018, this court denied the
plaintiff’s motion to further extend the discovery deadline. Dkt. No. 74. Six
months after entering his appearance in this case, the plaintiff’s counsel asked
to reopen discovery “to conduct a deposition of the named defendants” and
“any of the medical staff at Columbia St. Mary’s Hospital.” Dkt. No. 110 at 1.
The court gave counsel over four months to do that, and the deadline for
completing that discovery expired three months ago. Dkt. No. 113. The plaintiff
did not ask for an extension of the October 31, 2019 deadline before it passed.
Had the court not been in trial on January 23, 2020, it would have expected to
discuss either dispositive motions deadlines or trial dates with the parties. The
court will not allow further discovery.
Plaintiff’s counsel has had just shy of a year—since the status conference
on February 5, 2019—to review the pro se motion to compel discovery and

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decide whether to withdraw it or have the court rule. He’s not withdrawn it or
asked the court to rule. The court will deny the motion without prejudice.
The court sets dates for dispositive motions below.
The court DENIES WITHOUT PREJUDICE the plaintiff’s pro se motion to
compel. Dkt. No. 78.
The court ORDERS that any party wishing to file a dispositive motion
must do so by the end of the day on March 6, 2020. The response and reply
deadlines in Civil L.R. 56 will apply.
Dated in Milwaukee, Wisconsin this 3rd day of February, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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