Santos v. Kartman et al

Filing 41

ORDER signed by Judge Pamela Pepper on 8/14/2017. 29 Plaintiff's MOTION for extension of time DENIED as moot. 30 Plaintiff's MOTION for reconsideration of that part of the court's 6/30/2017 order denying the appointment of counsel DENIED. Within 21 days, defendants to deliver copy of confidential investigation report requested by plaintiff to the court's chambers for in camera review. (cc: all counsel, via mail to Jose Luis 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, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION
FOR AN EXTENSION OF TIME (DKT. NO. 29), DENYING THE
PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE COURT’S
DENIAL OF MOTION TO APPOINT COUNSEL (DKT. NO. 30), AND
ORDERING DEFENDANTS TO PROVIDE CONFIDENTIAL DOCUMENT
TO THE COURT FOR AN IN CAMERA REVIEW
______________________________________________________________________________
I.

Motion for Extension of Time
The defendants filed a motion for summary judgment on June 23, 2017.

Dkt. No. 20. The plaintiff asked the court to extend the deadline by which he
was required to respond, dkt. no. 29; three weeks later, the court received from
the plaintiff a timely response to the motion, dkt. nos. 32-35. The court will
deny the plaintiff’s motion for an extension of time as moot.
II.

Motion for Reconsideration and Motion for Protective Order
On June 30, 2017, the court denied the plaintiff’s motion to compel the

production of a confidential document that defendants refused to produce in
response to a discovery request, because the court found that the plaintiff’s
motion was premature. Dkt. No. 28. In that same order, the court denied
without prejudice the plaintiff’s motion for the recruitment of counsel. Id. A
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little more than a week later, the court received from the plaintiff a motion for
reconsideration of both decisions. Dkt. No. 30. The defendants oppose the
motion, and have asked the court to enter a protective order in connection with
the confidential document. Dkt. No. 36. For the reasons explained below, the
court will deny the plaintiff’s motion asking the court to reconsider its denial of
his motion to appoint counsel, and will require the defendants to deliver the
confidential document to the court’s chambers for an in camera review.
A. Reconsideration of Order Denying Motion for Appointment of 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). The litigant must first, however, make reasonable efforts to hire
private counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
Once the litigant demonstrates that he has made reasonable attempts to hire
counsel, the court then decides “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).
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.
Most incarcerated plaintiffs who are representing themselves ask the
court to appoint counsel to represent them. Most of them are not lawyers, do
not have any legal training, do not have funds to hire an attorney, and have
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limited access to legal research materials. The court does not have the
resources to pay lawyers to represent pro se plaintiffs, and there are not
enough lawyers in the community willing to volunteer their time to represent
pro se plaintiffs. Accordingly, the court must consider carefully the Pruitt
factors and appoint counsel only in complex cases where it believes the plaintiff
is not capable of clearly presenting his claims to the court.
The plaintiff has satisfied the first Pruitt factor by demonstrating that he
made reasonable attempts to hire private counsel on his own. Dkt. No. 31. The
court, however, will not recruit counsel to represent him at this time because
the court is satisfied that the plaintiff is capable of representing himself. The
issues in the case are not complex, and the plaintiff successfully has served
discovery, filed numerous motions, and filed a response to the defendants’
motion for summary judgment. The court has not had any problems
understanding the plaintiff’s communications: they are well thought-out,
organized and supported by relevant case law.
In fact, it appears that the plaintiff’s only reason for wanting an attorney
is so that the attorney can view the confidential document that the defendants
refuse to produce. As explained below, the court will order the defendants to
deliver that document to its chambers so that it can confirm that defendant
Mark Kartman’s responses to the plaintiff’s interrogatories about the document
fully and accurately summarize the information relevant to the plaintiff’s claim.
In light of this, there is no reason for a pro bono attorney to review the
document. The court believes that the plaintiff is otherwise capable of
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representing himself at this time, so it will deny his motion for reconsideration
of that decision.
B. Reconsideration of Denial of Motion to Compel
The plaintiff alleges that Kartman said he fired the plaintiff from his
prison job because the plaintiff refused to participate in the investigation of a
series of gang-related fights, despite Kartman’s belief that the plaintiff had
relevant information (the plaintiff denies that he had any relevant information).
Dkt. No. 1 ¶27. During discovery, the plaintiff asked Kartman to produce
documents that supported Kartman’s assertion that the plaintiff was involved
in or had information about the fights. The defendants responded with some
documents, but they noted that they were withholding an eight-page document
containing notes of confidential interviews conducted as part of the
investigation. Dkt. No. 28 at 2. To provide the plaintiff with relevant
information without disclosing the confidential document itself, the defendants
suggested that the plaintiff serve an interrogatory on Kartman, seeking
information about what Kartman knew based on his investigation.
The plaintiff did so, and Kartman responded to the interrogatory as
follows: “During a confidential interview with security staff, an inmate stated
that plaintiff was supposed to be involved in the altercation.” Dkt. No. 37 at 4.
Kartman further explained,
This indicated that plaintiff may have falsely denied
involvement during plaintiff’s interview. It also indicated
plaintiff was a security threat if allowed to continue working in
the kitchen, both because of his reported involvement in
security threat group activities, and because of a risk of attack
by other security threat group activities, and because of a risk
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of attack by other security threat group members as retaliation
for plaintiff’s staying out of an altercation that he was supposed
to have been involved in.
Id. (citing Dkt. No. 31-1 at 1-2).
The defendants argue that the contents of the confidential document are
irrelevant because the basis for the plaintiff’s claim is fundamentally flawed.
Dkt. No. 37 at 3. They assert that, whether the document supports Kartman’s
assertion that he had reason to believe the plaintiff was involved in the fights
when he fired the plaintiff doesn’t matter, because regardless of why Kartman
fired him, the firing was not related to the plaintiff’s exercise of any
constitutionally protected right. Id. The defendants conclude that, because the
evidentiary value of the document to the plaintiff is low, it would be highly
prejudicial to require the defendants to produce it, given that it is such a highly
confidential security document. Id.
The plaintiff does not clearly explain why he does not want to rely on the
sworn statement from Kartman about the contents of the document, and
instead demands access to the document itself. It may be that the plaintiff
wants confirmation that Kartman’s summary about the relevant contents of the
document is complete and accurate. The court understands the plaintiff’s
desire for confirmation; however, the court also is sensitive to the institution’s
need to keep investigation techniques, inmate witnesses and other sensitive
information confidential.
To that end, the court will order the defendants to deliver a copy of the
confidential investigation report to the court’s chambers for an in camera (in
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chambers) review. The court will determine whether, as the defendants have
represented, Kartman’s response to the plaintiff’s interrogatory about the
document was complete and accurate. If Kartman’s response was complete and
accurate, the plaintiff has given the court no reason to order that the
defendants produce the document. The court will enter a decision on that
aspect of the plaintiff’s motion for reconsideration and on the defendants’
motion for a protective order once the court has reviewed the document.
The court DENIES the plaintiff’s motion for an extension of time as moot.
Dkt. No. 29.
The court DENIES the plaintiff’s motion for reconsideration with respect
to that portion of the court’s June 30, 2017 order (dkt. no. 28) denying the
plaintiff’s motion to appoint counsel. Dkt. No. 30.
The court ORDERS the defendants to deliver a copy of the confidential
investigation report to the court’s chambers for an in camera review within
twenty-one days of this order.
The court will enter a decision on the plaintiff’s motion for
reconsideration of the court’s denial of his motion to compel and on the
defendants’ motion for a protective order after it has had an opportunity to
review the confidential investigation report.
Dated in Milwaukee, Wisconsin this 14th day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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