Brown v. Duyoung et al

Filing 84

ORDER signed by Judge Pamela Pepper on 11/28/2018. 12/6/2018 Status Conference CANCELLED. By 12/14/2018 parties to notify the court as to willingness to participate in mediation with Magistrate Judge. (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.
______________________________________________________________________________
ORDERING REMOVING DECEMBER 6, 2018 STATUS CONFERENCE FROM
HEARING CALENDAR AND REQUIRING PARTIES TO FILE STATEMENTS
REGARDING WILLINGNESS TO MEDIATE
______________________________________________________________________________
On August 29, 2018, the court denied the defendant’s motion for
summary judgment on exhaustion grounds. Dkt. No. 71. It gave the defendant
a deadline by which to file a substantive summary judgment motion, id.; the
court extended that deadline at the defendant’s request to November 9, 2018,
dkt. no. 73.
In September, the court received from the plaintiff a motion to clarify the
order extending the deadline, dkt. no. 74, and a motion to appoint counsel,
dkt. no. 76. The court granted the motion to clarify, and explained that in
granting the motion to extend the deadline for filing a substantive summary
judgment motion, it intended only to extend that deadline, not to allow the
defendant to conduct further discovery. Dkt. No. 78. In that order, the court
also denied the plaintiff’s motion to appoint counsel, explaining that it wanted

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to wait to see whether the defendant filed a substantive summary judgment
motion. Id. The court also stated the following:
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 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 to 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.
Id. at 7.
That order appeared on the court docket at 1:50 p.m. on September 27,
2018. Dkt. No. 78. At 3:47 p.m. that day, the defendant filed a request for a
status conference and indicated that he would not be filing a motion for
summary judgment on the substantive issues. Dkt. No. 79. In response to that
request, the court scheduled a telephone status conference for December 6,
2018 at 1:00 p.m. Dkt. No. 80.

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Because the defendant indicated that he would not be filing a summary
judgment motion, the court began to try to recruit a lawyer to represent the
plaintiff. The court started that process some weeks ago. So far, it has not been
successful in finding an attorney willing to represent the plaintiff. The court
suspects that one of the reasons it is having trouble is because the next steps
in the case are not clear. The court cannot tell the potential volunteer lawyers
whether they are agreeing to represent the plaintiff for a trial or for a
mediation. Many busy volunteer lawyers are more willing to represent a
plaintiff for mediation only—a mediation does not require the lawyer to
subpoena witnesses, prepare motions and trial documents, create jury
instructions and jury questions, and so forth. It is much easier to work a
mediation around a lawyers’ busy schedule, and there is much more flexibility
scheduling a mediation than courts (including this one) have in scheduling
trials.
Neither the plaintiff nor the defendant has asked the court to refer the
case to mediation. The plaintiff, however, has implied that he might be
interested in mediation. On October 29, 2018, the court received from the
plaintiff a “petition to set a trial date.” Dkt. No. 82. He discussed how long the
case had been pending, and that he wanted to avoid further delay. Id. at 1. He
also stated, “In the court’s September 27, 2018 orders it suggested the parties
seek mediation. The defendant has yet to contact me to do so, and it will
further delay the case to continue to wait.” Id.

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The court cannot be sure, but it is possible that the plaintiff was
indicating in the above statement that he is willing to participate in mediation
with a magistrate judge. If the defendant also is willing to participate in
mediation with a magistrate judge, the court could tell potential volunteer
lawyers that it was looking for someone to assist the plaintiff with mediation.
This might make it easier for the court to recruit a lawyer for the plaintiff.
The court left the December 6, 2018 status conference on the docket in
the hope that it could recruit a lawyer for the plaintiff before that hearing. It
appears unlikely that the court will be successful by then. So the court will
remove the December 6, 2018 hearing from the hearing calendar, and instead
will require the parties to file statements telling the court whether they are
willing to participate in mediation. If both parties are willing, the court will
continue to try to recruit counsel for the plaintiff to represent him in the
mediation, and once it finds a lawyer for him, the court will refer the case to
magistrate judge.
If either party indicates that he is not willing to participate in mediation,
the court will continue to try to recruit a lawyer to represent the plaintiff at a
trial, and once it has found one, will set up a scheduling conference.
The court ORDERS that the December 6, 2018 status conference
scheduled for 1:00 p.m. by telephone is REMOVED from the hearing calendar.
The court ORDERS that by the end of the day on Friday, December 14,
2018, each party shall file a statement notifying the court whether he is willing
to participate in mediation with a magistrate judge. The parties must file
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the notice in time for the court to receive it by the end of the day on Friday,
December 14, 2018.
Dated in Milwaukee, Wisconsin this 28th day of November, 2018.
BY THE COURT:
__________________________________
HON. PAMELA PEPPER
United States District Judge

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