Larry v. Meisner et al

Filing 42

ORDER signed by Judge Pamela Pepper on 6/26/2017. 18 Plaintiff's MOTION for Extension of Time to identify John Doe defendants GRANTED nunc pro tunc to 8/3/2017. 23 Plaintiff's MOTION to Amend/Correct Complaint GRANTED; Amended Co mplaint (Dkt. No. 10) remains operative complaint, Matthew Friend SUBSTITUTED for John Doe #3 and Russell Goldsmith SUBSTITUTED for John Doe #4; John Doe #7 DISMISSED as defendant. Defendants Friend and Goldsmith shall file responsive pleading to com plaint within 60 days. 24 Plaintiff's MOTION to Subpoena Edward Wall DENIED. 31 Plaintiff's MOTION to Compel Discovery DENIED. 40 Defendants' MOTION to Stay Dispositive Motions Deadline Pending Decision on Motion for Summary J udgment GRANTED. 41 Defendants' MOTION for Extension of Time of Dispositive Motions Deadline DENIED as moot. By end of day 7/14/2017, plaintiff shall file discovery demands on defendants, limited to question of whether he filed inma te complaints about issues raised in this lawsuit, and whether he appealed any dispositions of those complaints. Deadline for plaintiff's response to defendant Morgan's motion for summary judgment on exhaustion grounds EXTENDED to 9/22/2017. (cc: all counsel, via mail to Orlando Larry at FCI Gilmer)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ORLANDO LARRY,
Plaintiff,
v.

Case No. 16-cv-1108-pp

DONALD MORGAN, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION
OF TIME (DKT. NO. 18); GRANTING MOTION TO SUBSTITE MATTHEW
FRIEND FOR JOHN DOE #3 AND RUSSELL GOLDSMITH
FOR JOHN DOE #4 (DKT. NO. 23); DENYING MOTION FOR ORDER
REGARDING SUBPOENA (DKT. NO. 24); DENYING PLAINTIFF’S MOTION
TO COMPEL (DKT. NO. 3); GRANTING DEFENDANTS’ MOTION TO STAY
DISPOSITIVE MOTION DEADLINE (DKT. NO. 40); AND DENYING AS MOOT
DEFENDANTS’ MOTION FOR EXTENSION OF TIME OF DISPOSITIVE
MOTIONS DEADLINE (DKT. NO. 41)
______________________________________________________________________________
I.

Plaintiff’s Motion to Extend Time to Identify Doe Defendants
On January 27, 2017, the court entered a scheduling order that, among

other things, required the plaintiff to identify the proper names of three
unidentified John Doe defendants by March 3, 2017. Dkt. No. 17. The court
warned the plaintiff that if he did not identify the Doe defendants by that date,
the court might dismiss the Doe defendants. Id. On March 27, 2017 (more than
three weeks after the deadline)1, the court received a motion from the plaintiff,
asking the court to extend the March 3, 2017 deadline. Dkt. No. 18. The
plaintiff explained that he had not received responses to his discovery requests,
The plaintiff dated the motion March 22, 2017—two weeks and four days after
the deadline. Dkt. No. 18 at 2.
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and that he was attempting to resolve the issue with the defendants’ counsel.
Id. The plaintiff since has identified the Doe defendants (see III below), and the
court will grant the plaintiff’s motion to extend the deadline for him to identify
the Doe defendants nunc pro tunc to the date on which he identified them.
II.

Defendant Morgan’s Motion for Summary Judgment on Exhaustion
Grounds
On March 31, 2017, defendant Morgan filed a motion for summary

judgment on the ground that the plaintiff had failed to exhaust his
administrative remedies before filing this case. Dkt. No. 19. The brief in
support of the motion asks the court to dismiss the case because, while the
plaintiff may have filed two inmate complaints about the events of which he
complains, he never appealed the resolution of those complaints. Dkt. No. 20 at
3. This motion is relevant to the court’s decisions on some of the pending
motions.
III.

Plaintiff’s Motion for Leave to File An Amended Complaint
On April 3, 2017, the plaintiff filed a motion to for leave to file a second

amended complaint. Dkt. No. 23. The only changes the plaintiff sought to make
to the amended complaint he filed back in November 2016 (Dkt. No. 10) are to
identify John Doe #3 as Matthew Friend and to identify John Doe #4 as Russell
Goldsmith. The court construes the motion for leave to amend as a motion to
substitute the proper names for the John Doe #3 and John Doe #4
placeholders. The amended complaint the plaintiff filed on November 3, 2016
(Dkt. No. 10) will remain the operative complaint in this lawsuit, with Matthew

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Friend and Russell Goldsmith being substituted for John Doe #3 and John Doe
#4, respectively.
In its November 23, 2016 screening order, the court also allowed the
plaintiff to proceed on a claim against John Doe #7. The plaintiff has not
identified the proper name of John Doe #7, and the deadline to do so has
passed. The court will dismiss John Doe #7 as a defendant.
IV.

The Plaintiff’s Motion regarding a Subpoena
Also on April 3, 2017, the plaintiff filed a document entitled “Subpoena

Duces Tecum.” Dkt. No. 24. In reality, the document is a motion asking the
court to order Edward Wall to produce various documents. The motion
identifies Edward Wall as the Secretary of the Department of Corrections. Id. at
1. Edward Wall is not a defendant in this case, and he has not been the
Secretary of the Department of Corrections since April 2016.
The plaintiff explains that, in response to his discovery requests,
defendant Donald Morgan (at that time, the only named defendant) had stated
that Morgan either was unaware of or unable to locate the materials the
plaintiff requested. Dkt. No. 24 at 2. The plaintiff also asserts, without
explaining why, that the requested discovery is relevant to the claims and
defenses he has raised. Id. The motion asks the court to allow the plaintiff to
serve a subpoena on Edward Wall, demanding that Wall produce the
documents he asked for. Id. at 2-3.
A party may seek to compel a non-party to provide requested documents
by serving that person with a subpoena. See Fed. R. Civ. Pro. 45. A person
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wishing to issue a subpoena must ask the clerk of court to provide him with a
subpoena form; the clerk of court will sign a blank subpoena form and deliver
it to the requesting party. Fed. R. Civ. Pro. 45(a)(3). The requesting party must
then complete the form, and make arrangements (and pay) for someone to
serve the subpoena on the individual from whom he seeks to obtain the
documents.
The party who seeks the subpoena is responsible for paying the
associated costs—even if the court has found that that the party is indigent.
See Armstead v. MacMillian, 58 Fed. Appx. 210, 213 (7th Cir. 2003)
(unpublished) (“District courts do not have statutory authority to waive witness
fees for indigent civil litigants . . . .”); Nail v. Gutierrez, Case No. 06-cv-292,
2007 WL 425535 at *1 (N.D. Ind. Nov. 30, 2007) (unpublished) (“. . . 28 U.S.C.
§1915 does not authorize the expenditure of public funds for deposition costs;
indeed, that statute does not relieve a pro se prisoner proceeding in forma
pauperis from paying any of his discovery costs.”) (citations omitted). Courts do
not place the financial burden of a party’s discovery on non-party individuals
or on the opposing party.
For this reason, incarcerated plaintiffs rarely rely on subpoenas to collect
information they need to prosecute their cases. Rather, they rely on the
discovery process—serving interrogatories, requests for admission, and
requests for production on the defendants’ attorneys. The plaintiff asserts that
the discovery process has not resulted in his getting the documents he needs.
The court will address that claim later in this order.
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The plaintiff himself notes in his motion, however, that it “is highly
possible that the defendant will also be unable to locate the requested material
. . . .” Dkt. No. 24 at 2. It is not clear whom the plaintiff means by “defendant.”
If he means Edward Wall (who is not a defendant), he is correct. Edward Wall is
not the Secretary of the Department of Corrections, and has not held that
position since April 2016—almost a year before the plaintiff filed his motion for
a subpoena. Mr. Wall would not have access to Department of Corrections
documents at this point.
The court will deny the plaintiff’s motion for a subpoena, because (a) the
court does not issue subpoenas (if the plaintiff wants to issue a subpoena, he
must obtain one from the clerk of court, fill it out, make arrangements to have
it served, and pay to have it served); and (b) Edward Wall is not the Secretary of
the Department of Corrections, and is not the appropriate person to subpoena
even if the plaintiff followed the correct Rule 45 procedure.
V.

The Plaintiff’s Motion to Compel
On May 12, 2017—about five weeks after the court received the plaintiff’s

motion for a subpoena—the court received from the plaintiff a motion to
compel. Dkt. No. 31. The motion asked the court to issue an order compelling
the defendants to produce a copy of the Department of Corrections’
Disciplinary Handbook, given out to inmates during intake at Dodge
Correctional, and a copy of the inmate handbook given out to inmates during
that same intake process. Id. In the attached declaration, the plaintiff states

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that his request relates only to the exhaustion issue defendant Morgan raised
in his March 31, 2017 motion for summary judgment. Dkt. No. 32 at 1.
The plaintiff attached to the declaration a series of documents that
shows that the following events occurred:
*

On February 15, 2017, the plaintiff signed a discovery demand,

asking defendant Morgan for, among other things: DOC “policy, rules,
directives or instructions concerning the conduct of disciplinary proceedings,
2011 version;” DOC policies “governing prisoner’s rights to free exercise of
religion, 2011 version;” and a copy of the DOC’s “2011 version of the inmate
general and disciplinary rules handbook, including but not limited to Columbia
Correctional Institute rules governing inmates that were being temporarily
housed at it’s Institution Barracks in the year of 2011.” Dkt. No. 32-1 at 1-2.
*

On March 22, 2017, the plaintiff wrote a letter to counsel for

defendant Morgan, indicating that he had not received her responses to his
February 15, 2017 discovery demands, and demanding that she provide them
within ten days of the date of the letter. Id. at 5.
*

On March 22, 2017 (the same day the plaintiff wrote to defendant

Morgan’s counsel), defendant Morgan sent the plaintiff his responses to the
plaintiff’s discovery demands. Id. at 8. In response to the plaintiff’s request for
DOC rules and policies relating to disciplinary proceedings, 2011 version, the
defendant provided a copy of Chapter 303 of the Wisconsin Administrative
Code for the DOC. Id. at 10. In response to the plaintiff’s request for DOC
policies regarding prisoners’ free exercise of religion, 2011 version, the
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defendant provided three DAI policies. Id. In response to the plaintiff’s request
for a copy of the DOC 2011 general and disciplinary handbooks (including
Columbia Correctional’s rules governing inmates temporarily housed at the
Institution Barracks in 2011), the defendant responded that Columbia
Correctional did not have an inmate handbook until 2013. Id. at 11. He
responded that he was not able to find the Housing Unit 10 handbook from
2011, but he provided the plaintiff with the 2013 handbook. Id. at 11-12.
*

On April 17, 2017, the plaintiff drafted a third request for

production of documents, asking for three items, including “[a] copy of
Wisconsin Department of Corrections General Inmate Handbook and
Disciplinary rule book.” Id. at 6.
*

On April 25, 2017, counsel for defendant Morgan responded to the

plaintiff’s third request. Id. at 17. As to the plaintiff’s request for the Wisconsin
Department of Corrections General inmate handbook and disciplinary rule
book, the defendant objected that the request was vague and ambiguous. Id. at
19. The defendant indicated that there was no “general inmate handbook for
the entire Wisconsin Department of Corrections,” and referred the plaintiff to
the handbooks and policies the defendant had provided the plaintiff in
response to his first request for production of documents. Id.
The court will deny the plaintiff’s motion to compel. The plaintiff first
asserts that the defendant did not timely respond to his February 15, 2017
discovery requests. Dkt. No. 32 at 2. The court does not agree. The defendant
would have had thirty days from the date the defendant received them to
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respond to the plaintiff’s February 15, 2017 discovery demands. The plaintiff
may have prepared his demands on February 15, 2017, but given the vagaries
of the prison mail system—and the regular mail system—it is likely that the
defendant did not receive the demands until several days later. February 15,
2017 was a Wednesday—even if the institution had put the plaintiff’s discovery
demands into the mail that very same day (which, in the court’s experience, is
somewhat unlikely), it would not be surprising if the defendant did not receive
them until the following week. The defendant’s March 22, 2017 response was
timely.
The plaintiff characterizes his March 22, 2017 letter as a good-faith effort
to confer with opposing counsel. The plaintiff may have acted in good faith, but
his letter was premature—he had not given the defendant sufficient time to
respond to his demands. And as the documents the plaintiff filed show, the
defendant provided the plaintiff with the discovery responses the very day the
plaintiff wrote this letter.
The plaintiff states that the defendant “evaded” his request “for those
particular books.” Dkt. No. 32 at 2. The court disagrees. The defendant
explained to the plaintiff that at the time of the events in the case, Columbia
Correctional did not have an inmate handbook; that counsel had not been able
to find the 2011 Unit 10 handbook; and that counsel was providing the 2013
Unit 10 handbook. The defendant also provided the plaintiff with the policies
he’d requested.

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Perhaps some of the reason the plaintiff feels the defendant has not
responded to his requests is that he has made different requests at different
times using different terminology. He has asked for a “general” inmate
handbook. He has asked for “disciplinary” handbooks. In the motion to compel,
the plaintiff stated for the first time that he was asking for two particular
handbooks that, he asserts, are given to inmates during intake at Dodge
Correctional. It is not clear how the defendant would have known that the
particular handbooks the plaintiff asked for are handbooks given to each
inmate passing through Dodge on the way to his final designation.
The court will deny the plaintiff’s motion to compel. The defendant has
provided the plaintiff with items that appear to respond to the more specific of
the plaintiff’s demands. If the items the defendant has provided are not the
specific items the plaintiff was seeking, the appropriate thing for him to do
would have been to write to counsel for the defendant and describe, in detail,
the items he wanted—that is what a “good faith” attempt to resolve differences
looks like.
VI.

Defendant’s Motion to Stay Dispositive Motions Deadline Pending Decision
on Motion for Summary Judgment on Exhaustion Grounds.
In the January 27, 2017 scheduling order, the court ordered the parties

to file dispositive motions by June 26, 2017. Dkt. No. 17. The defendant has
filed a motion to stay that deadline, reminding the court that he has filed a
motion for summary judgment based on the plaintiff’s failure to exhaust
administrative remedies. Dkt. No. 40 at 1. He argues, citing supporting case
law, that the court should decide the exhaustion issue before requiring the
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parties to file merits-based dispositive motions. Id. The court agrees, and will
stay the deadline for filing merits-based dispositive motions until it rules on the
defendant’s exhaustion-based motion.
VI.

Scheduling Issues
Because the plaintiff now has identified the Doe defendants, the court

will order electronic service of the plaintiff’s November 2016 amended
complaint (Dkt. No. 10) on defendants Friend and Goldsmith. Under an
agreement between the Wisconsin Department of Justice and the court, those
two defendants will have sixty days to respond to the plaintiff’s amended
complaint. As a way of allowing the newly identified defendants to “catch up”
procedurally, the court will allow the newly identified defendants to either
respond to the plaintiff’s amended complaint and/or join in defendant
Morgan’s motion for summary judgment based on exhaustion.
On April 20, 2017, the plaintiff responded to defendant Morgan’s motion
for summary judgment. Dkt. No. 28. In his response, the plaintiff stated that
the defendants had not provided him with his requested discovery, and that he
needed additional discovery to be able to respond to the exhaustion issue. Id.
He asked the court either to deny Morgan’s motion or to stay ruling on the
motion until he could complete discovery. Id.
The court notes that on April 19, 2017, the court granted defendant
Morgan’s motion to stay discovery unrelated to exhaustion pending a decision
on his motion for summary judgment. Dkt. No. 27. The court acknowledges,
though, that the plaintiff may need additional time to conduct very limited
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discovery related to the exhaustion issue. The court will extend the plaintiff’s
deadline to respond to Morgan’s motion for summary judgment. Between now
and then, the court will allow the plaintiff to conduct limited discovery with
regard to evidence relating to Morgan’s claim that the plaintiff did not file
inmate complaints, or appeal the resolution of any complaints, relating to the
issues in this case. Discovery on all other topics will remain stayed under the
court’s April 19 order.
VII.

Conclusion
The court GRANTS the plaintiff’s motion for an extension of time to

identify the John Doe defendants, nunc pro tunc to April 3, 2017. Dkt. No. 18.
The court CONSTRUES the plaintiff’s April 3, 2017 motion for leave to
amend the complaint as a motion to substitute the real names of Doe
defendants #3 and 4, and GRANTS that motion. Dkt. No. 23. The court
ORDERS that the amended complaint at Dkt. No. 10 shall remain the operative
complaint, but ORDERS that Matthew Friend is SUBSTITUTED for John Doe
#3 and Russell Goldsmith is SUBSTITUTED for John Doe #4.
The court DISMISSES John Doe #7 as a defendant.
The court ORDERS that under the informal service agreement between
the Wisconsin Department of Justice and this court, copies of plaintiff’s
complaint and this order are being electronically sent to the Wisconsin
Department of Justice for service on Matthew Friend and Russell Goldsmith.
The court also ORDERS that, under the informal service agreement
between the Wisconsin Department of Justice and this court, Matthew Friend
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and Russell Goldsmith shall file a responsive pleading to the complaint within
sixty days of receiving electronic notice of this order.
The court DENIES the plaintiff’s motion to subpoena Edward Wall. Dkt.
No. 24.
The court DENIES the plaintiff’s motion to compel discovery. Dkt. No. 31.
The court also GRANTS the defendants’ motion to stay the deadline for
filing dispositive motions pending a decision on the defendants’ motion for
summary judgment on exhaustion grounds. Dkt No. 40.
The court DENIES AS MOOT the defendants’ motion for extension of
time of dispositive motions deadline. Dkt. No. 41.
The court ORDERS that, no later than the end of the day on July 14,
2017, the plaintiff shall file discovery demands on the defendants, limited to
the question of whether he filed inmate complaints about the issues he has
raised in this lawsuit, and about whether he appealed any dispositions of those
complaints. The court ORDERS that the deadline for the plaintiff to respond to
defendant Morgan’s motion for summary judgment on exhaustion grounds is
EXTENDED to September 22, 2017.
Dated in Milwaukee, Wisconsin this 26th day of June, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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