Brown v. Duyoung et al

Filing 78

ORDER signed by Judge Pamela Pepper on 9/27/2018. 74 Plaintiff's Motion to Clarify GRANTED. 76 Plaintiff's Motion to Appoint Counsel DENIED without prejudice. Discovery CLOSED; neither party may conduct further discovery (including depositions). (cc: all counsel, via mail to Ennis Brown at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
Case No. 16-cv-1463-pp
v.
DR. RICKY SEABUL,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO CLARIFY TEXT-ONLY
ORDER (DKT. NO. 74), DENYING MOTION TO APPOINT COUNSEL (DKT.
NO. 76) AND CLARIFYING SCOPE OF TEXT-ONLY ORDER GRANTING
EXTENSION OF TIME (DKT. NO. 73)
______________________________________________________________________________
On July 18, 2017, the court issued the original scheduling order in this
case; among other things, it set a deadline of November 17, 2017 for the parties
to complete discovery. Dkt. No. 26. On October 3, 2017—a little over a month
before the deadline for completing discovery—the defendant filed a motion to
extend that deadline. Dkt. No. 32. The court granted that request, and
extended the deadline for completing discovery to December 15, 2017. Dkt. No.
36. The court also extended the deadline for the parties to file dispositive
motions, such as summary judgment motions, to January 16, 2018. Id.
On December 27, 2018, the defendant filed a limited motion for summary
judgment, arguing that the court should grant judgment in his favor and
dismiss the case because the plaintiff had not exhausted his administrative
remedies. Dkt. No. 51. It is not unusual for a defendant in a §1983 prisoner
case to file a summary judgment motion limited just to the exhaustion issue,
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before filing summary judgment motions on the merits of the case. The reason?
Efficiency. The Prison Litigation Reform Act (“PLRA”) requires an inmate to
exhaust his administrative remedies before he can file a §1983 complaint. If the
prisoner did not exhaust his administrative remedies, the court is required to
dismiss the case; there is no point in the parties filing summary judgment
motions about the allegations in the case, because the court isn’t allowed to
decide the case if the prisoner didn’t exhaust his remedies before filing. So,
defendants in these cases often first file a summary judgment motion arguing
that the court must dismiss the case because the plaintiff did not exhaust his
remedies. If the court agrees, and finds that the plaintiff did not exhaust, the
court must dismiss the case, and it is over. If, on the other hand, the court
finds that the plaintiff did exhaust his remedies, the court denies the limited
motion for summary judgment, and gives the parties deadlines for filing
summary judgment motions about the actual allegations in the case.
That is what happened here. On August 29, 2018, the court issued an
order, finding that the plaintiff had exhausted his administrative remedies.
Dkt. No. 71. The parties had completed discovery on December 15, 2017, but
the court set a new deadline for the parties to file summary judgment motions
about the allegations in the case—the plaintiff’s claim that the defendant
violated his rights under the Eighth Amendment by performing surgery on his
armpit without providing him pain medication, and by performing the surgery
without the plaintiff’s consent. The deadline the court set for the parties to file
summary judgment motions on these issues was October 5, 2018. Id. at 12.
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The court also told the defendant that if he decided that he didn’t want to file a
motion for summary judgment on the merits of the plaintiff’s actual claims, he
should let the court know that as soon as possible, so that the court could
schedule a trial. Id.
On September 6, 2018, the defendant filed a motion, asking the court to
extend the October 5, 2018 deadline to November 9, 2018. Dkt. No. 72. The
court must confess that it did not read every word in the motion—it saw that
the defendant wanted only an additional month, and that defense counsel
asserted that she was tied up in depositions or trial for most of September. So
the court—without waiting for the plaintiff to respond—granted the motion. The
court often grants extensions of time to file dispositive motions, regardless of
which party asks for such an extension, if the extension doesn’t impact a
scheduled trial date. Lots of parties ask for extensions of time for lots of
reasons, and if it doesn’t throw scheduled trial dates out of whack, the court
tries to give parties the time they request. So it dashed off a quick, text-only
order, telling both parties that they could have until November 9, 2018 to file
summary judgment motions on the claims on which the plaintiff is proceeding.
The court certainly wishes it had read the defendant’s motion to extend
time more carefully. If it had, it would have seen that, buried in paragraph 3,
after defense counsel explained about her busy deposition and trial schedule,
she said this:
Defendant would like to depose the Plaintiff for the purpose of
determining whether a summary judgment motion on the
merits is advisable. At this time, counsel would be available to
depose Mr. Brown the weeks of September 24 and October 1.
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The transcript would likely arrive within 1 to 2 weeks following
the deposition. Defense counsel believes this additional onemonth time to conduct discovery will enable counsel to have a
clearer picture of the case and, if appropriate, will result in a
more orderly presentation of a dispositive motion.
Dkt. No. 72 at ¶¶3-4.
So—the defendant filed a motion titled “Motion for an Extension to File
Summary Judgment.” Id. The motion specifically asked the court to extend the
October 5, 2018 deadline for filing summary judgment motions to November 9,
2018. Within that motion to extend the summary judgment deadline, however,
defense counsel stated that she would “like” to depose the plaintiff, explained
why and explained when she was available. She did not file a motion to reopen
discovery, and discovery had closed almost nine months earlier. She did not
ask permission to depose the plaintiff. She stated, in a motion asking for
something else, that she wanted to depose the plaintiff.
Under the misimpression that the defendant just needed more time to file
the motion for summary judgment, the court’s text-only order said, “The court
ORDERS that the time for the defendant to file a motion for summary judgment
is EXTENDED until the end of the day on November 9, 2018.” Dkt. No. 73.
Apparently, however, defense counsel construed that order as an order
allowing her to do what she said she wanted to do in the motion—an order
allowing her to depose the plaintiff. The court says “apparently,” because of
what happened earlier today (September 27, 2018).
At 9:00 a.m. on September 27, 2018, the court began a sentencing
hearing in United States v. Marquise Jordan, 17-cr-86, a case involving a
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defendant who, at the age of seventeen, participated in a series of violent
carjackings over a period of days. Sentencing hearings take time (and this
court believes they should), and this one was no different. The government
provided an extensive discussion of the seriousness of the offenses, a victim
spoke, defense counsel provided information on the defendant’s family and
emotional background and the defendant himself talked to the court. The
hearing did not end until sometime after 10:30 a.m.
When the sentencing hearing ended, a member of the court’s staff related
that we had received a call from Waupun Correctional (where the plaintiff is in
custody). Defense counsel was there, at the institution, apparently trying to
depose the plaintiff. The plaintiff was refusing to be deposed. The parties
wanted the court to resolve the issue. Because I was not available, Magistrate
Judge Duffin generously agreed to step in. By that point, the plaintiff had left
and returned to his cell. Judge Duffin, as I understand it, briefly reviewed the
docket, and reported (correctly) that discovery had closed.
The plaintiff also had filed a motion, asking the court to clarify why it
granted the motion to extend the summary judgment deadline without waiting
for his input, and why the court even was allowing another summary judgment
motion when it already had ruled on one. Dkt. No. 74. The court has answered
those questions. It thought, wrongly as it turns out, that the defendant was
making a simple request for additional time to prepare his summary judgment
motion, and the court often rules on those “administrative” motions without
requiring a response. And it is allowing another summary judgment motion (if
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the defendant decides to file one) because the defendant has not yet moved for
summary judgment on the merits of the plaintiff’s Eighth Amendment claims.
The plaintiff also has asked the court to appoint counsel to represent
him. Dkt. No. 76. The plaintiff explains that he knows the law on this topic—he
knows that he is not entitled to a lawyer under the Constitution, and that
appointment of counsel is up to the court. Id. at 1. He says, as he has before,
that he’s contacted numerous attorneys, seeking help, and that none of them
have agreed to represent him. Id. He reminds the court that, even though he
has had several cases in the Eastern District, that does not mean that he has
any special legal skills or knowledge—he didn’t finish high school, and his
“educational level is not equal to the laws.” Id. at 2. He notes that in other
cases, the Seventh Circuit has advised district courts to appoint counsel to
help plaintiffs who have “well-founded” claims. Id. (citing Nally v. Ghosh, 799
F.3d 756 (7th Cir. 2015)).
The court is not going to appoint counsel to represent the plaintiff right
now, because it does not know what the defendant is going to do. The next step
in this process is for the defendant to decide, by November 9, 2018, whether he
wants to file a motion for summary judgment regarding the plaintiff’s Eighth
Amendment claims. The defendant may not conduct any further discovery, and
he may not depose the plaintiff. That ship has sailed, months ago. If the
defendant decides to file a motion for summary judgment on the plaintiff’s
Eighth Amendment claims, the court will consider whether to appoint counsel
to help the plaintiff respond. If the defendant chooses not to file a motion for
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summary judgment, the court will certainly recruit counsel to help the plaintiff
represent himself at a trial.
The court notes one other thing. This case has been pending for almost
two years. A lot has gone on in the case. The plaintiff has made some serious
allegations—that the defendant operated on him without his permission, and
without sufficient pain medication. If the defendant decides to file a motion for
summary judgment, both parties will have to spend significant time digging
into the facts, and there is no guarantee that the defendant will prevail. If the
defendant chooses not to file a motion for summary judgment, the parties will
have to spend time preparing for a jury trial, and leave their fates to those
unknown jurors.
This court is blessed to have six very talented magistrate judges, all of
whom are experienced mediators. They frequently help parties negotiate
settlements, avoiding costly briefing and unpredictable trials, and helping the
parties to reach resolutions that they can control, and that they create
themselves (rather than resolutions imposed on them by a jury or a judge).
This court is more than happy to refer a case to a magistrate judge so that the
parties can try mediation. If the mediation is successful, the court will adopt
whatever agreement the parties reach. If it isn’t, the court will never learn what
happened during the mediation sessions with the magistrate judge; the case
will simply be returned to this court for further proceedings (usually a trial).
The court strongly encourages the parties to think about this option, as they
consider their next steps.
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The court GRANTS the plaintiff’s motion to clarify its September 10,
2018 text-only order. Dkt. No. 74.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 76.
The court ORDERS that discovery is CLOSED; neither party may
conduct further discovery (including taking depositions).
Dated in Milwaukee, Wisconsin this 27th day of September, 2018.
BY THE COURT:
______________________________________
HON. PAMELA PEPPER
United States District Judge

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