Santos v. Kartman et al

Filing 28

ORDER signed by Judge Pamela Pepper on 6/30/2017 DENYING 15 Plaintiff's Motion to Compel and DENYING without prejudice Plaintiff's request for counsel. (cc: all counsel, via mail to Jose Santos at Wisconsin Secure Program Facility) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSE LUIS SANTOS,
Plaintiff,
v.

Case No. 16-cv-1362-pp

MARK KARTMAN AND LORIE IVERSON,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 15)
______________________________________________________________________________
Plaintiff Jose Luis Santos is a Wisconsin state prisoner representing
himself. On December 20, 2016, Magistrate Judge William E. Duffin screened
the plaintiff’s complaint, and allowed him to proceed on equal protection and
retaliation claims based on allegations that the defendants fired him from his
prison job because of his race and/or in retaliation for his refusal to provide
information about a gang-related investigation. Dkt. No. 8 at 7-9. On January
11, 2017, the case was reassigned to this court because the defendants did not
consent to the magistrate judge presiding over the case. The plaintiff has filed a
motion to compel. Dkt. No. 15. The court will deny the motion.
In his brief in support of his motion to compel, the plaintiff states that on
February 20, 2017, he filed a Request for Admissions and Production of
Documents. Dkt. No. 16 at 1. His motion relates to the defendants’ responses
to his first three requests for production of documents:
REQUEST NUMBER 1: Identify and Produce any and all
documents showing that Santos played some kind of role in the
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incident that took place and why plaintiff lost his job in part
because he had played a role and had significant information
regarding the altercation.
RESPONSE NUMBER 1: Please the attached documents:
1) Memorandum to Jose Santos from Security Director
Kartman, dated June 14, 2016 (1 page);
2) Offender Work/Program/Placement (DOC-1408 form),
date signed July 20, 2016 (1 page).
There is also an 8-page Division of Adult Institutions
investigative file that is responsive to this request. The file is
strictly confidential for security reasons, as it relates to the
investigation of gang activities and contains notes of confidential
interviews. Counsel for Defendants OBJECTS to producing any
part of the investigative file under any circumstances and will seek
a protective order to that effect if necessary. To the extent that the
file contains information relevant to Plaintiff’s claims, Plaintiff may
serve interrogatories on Security Director Kartmann pursuant to
Fed. R. Civ. P. 33 requesting information regarding the loss of
Plaintiff’s job. This response is not a promise that Mr. Kartmann
will be able to fully answer any interrogatory Plaintiff serves for the
same reason that the investigative file cannot be produced, but any
interrogatories will be reviewed with counsel and Defendants will
respond accordingly.
REQUEST NUMBER 2: Identify and Produce any and all
evidence of the investigation showing what Santos stated to the
investigator.
RESPONSE NUMBER 2: See OBJECTION in Response No. 1.
REQUEST NUMBER 3: Identify and Produce any and all
evidence as to why Santos was fired from his job on 6-14-16.
RESPONSE NUMBER 3: See Response No. 1.
Dkt. No. 17-1 at 1-2.
The plaintiff argues that in objecting to his discovery requests, the
defendants are trying to deprive him of the discovery that is most relevant to
his claims. Dkt. No. 16 at 3. He says that if he does not have this information,
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it will be impossible for him to “fight this case,” and the documents show what
he will need to “win this case.” Id.
The defendants respond that the court should deny the plaintiff’s motion
to compel as premature. Dkt. No. 18 at 3, 4. According to the defendants, the
plaintiff did not confer with them before filing his motion, as required by the
federal and local rules of civil procedure. Id. at 3. The defendants also state
that on April 10, 2017, the plaintiff served interrogatories seeking specific
information about his claims, as counsel for the defendants had suggested that
he do in response to the plaintiff’s discovery request. Id. The defendants assert
that the deadline for them to respond to the plaintiff’s interrogatories was May
10, 2017, and that the plaintiff should be required to wait to review their
response to his interrogatories before seeking the court’s intervention regarding
the investigative file. Id.
Under Federal Rule of Civil Procedure 37, a party may file a motion to
compel discovery where another party fails to respond to interrogatories or
requests for production of documents. See Fed. R. Civ. P. 37(a)(3)(B)(iii) and (iv).
The movant “must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” Fed. R.
Civ. P. 37(a)(1). Additionally, Civil Local Rule 37 requires the movant to “recite
the date and time of the conference or conferences and the names of all parties
participating in the conference or conferences.”

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The plaintiff’s motion did not include a certification that he conferred, or
attempted to confer, with the defendants before filing his motion. (The court
realizes that a plaintiff who is in custody cannot pick up the telephone and call
the defendants’ lawyer, but he can write counsel a letter in an attempt to work
out any disagreements over discovery.) The plaintiff’s motion also is premature
because, as the defendants explained in their response to his discovery
request, the plaintiff may be able to obtain relevant information from the
Division of Adult Institutions investigative file by serving an interrogatory on
Security Director Kartmann. The plaintiff served interrogatories on Kartmann
on April 10, 2017, and the defendants’ response was due May 10, 2017.
Without knowing the outcome of this discovery request, court action would be
premature.
Finally, the plaintiff’s motion asked the court to appoint a lawyer to
represent him. The plaintiff bases his request on needing the Division of Adult
Institutions investigative file. Dkt. No. 16 at 3. According to the plaintiff, if he
can’t have the documents for security reasons, then he will need an attorney
who (presumably) will be permitted to review the documents.
In a civil case, the court has discretion to decide whether 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). First, however, the person has to make a
reasonable effort to hire private counsel on his own. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). After the plaintiff makes that reasonable attempt to
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hire counsel, the court then must decide “whether the difficulty of the case –
factually and legally – exceeds the particular plaintiff’s capacity as a layperson
to coherently present it.” Navejar, 718 F.3d at 696 (citing Pruitt, 503 F.3d at
655). To decide that, the court looks, not only at the plaintiff’s ability to try his
case, but also at his ability to perform other “tasks that normally attend
litigation,” such as “evidence gathering” and “preparing and responding to
motions.” Id.
The plaintiff has not provided the court with any proof that he attempted
to find an attorney on his own. He must make a “reasonable effort” to find an
attorney before the court will consider recruiting one for him. In order to satisfy
this requirement, the plaintiff should contact at least three attorneys. If he
decides to file another motion to appoint counsel, the plaintiff should include
the names of the attorneys in his renewed motion. Because the plaintiff has not
satisfied the initial requirement of trying to find an attorney on his own, the
court will deny his request for counsel without prejudice (which means that he
may renew the request once he has tried to find a lawyer on his own).
The court DENIES the plaintiff’s motion to compel. Dkt. No. 15.
Dated in Milwaukee, Wisconsin this 30th day of June, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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