Walker v. Ludvigson et al
Filing
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ORDER signed by Judge Pamela Pepper on 12/17/2018. 20 Defendants' motion for extension of time to file dispositive motions GRANTED nunc pro tunc to 5/11/2018. 36 Plaintiff's request to have counsel appointed DENIED without prejud ice. Plaintiff's response, if he chooses to file one, to defendants' motion for summary judgment due 2/15/2019; failure to file by deadline may result in dismissal of case for failure to prosecute or ruling on summary judgment motion without plaintiff's input. (cc: all counsel, via mail to De'Von Walker at Wisconsin Resource Center)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DE’VON L. WALKER,
Plaintiff,
v.
Case No. 16-cv-1485-pp
PAUL LUDVIGSON, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING, NUNC PRO TUNC, DEFENDANTS’ MOTION FOR AN
EXTENSION OF TIME TO FILE DISPOSITIVE MOTIONS (DKT. NO. 20),
DENYING PLAINTIFF’S REQUEST THAT THE COURT APPOINT COUNSEL
(DKT. NO. 36) AND ORDERING PLAINTIFF TO RESPOND TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT BY FEBRUARY 15, 2019
______________________________________________________________________________
On May 11, 2018, the defendants filed a motion for summary judgment.
Dkt. No. 20. The plaintiff’s response to that motion was due in mid-June 2018;
he never responded. On July 9, 2018, the court ordered the plaintiff to either
respond to the motion or explain why he could not. Dkt. No. 35. On August 3,
2018, the court received the plaintiff’s explanation. Dkt. No. 36. He says that
he is suffering from the “significant onset” of several mental illnesses and
disorders; he says that in the past months, he had attempted to commit
suicide on more than one occasion and that he was undergoing “strenuous
inpatient” at the Wisconsin Resource Center. Id. at 1. The plaintiff said that he
lacked the “mental fortitude” to respond to the motion—he even says that he
had two psychotic episodes triggered by reading the summary judgment
motion. Id. at 1-2. He says that the motion caused him to have intense panic
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attacks, one of which caused a suicide attempt. Id. at 2. He says that he can’t
argue his side of the case without triggering trauma. Id. The plaintiff asked the
court either to dismiss the case without prejudice, so that he could resume it
when he was stable enough to handle it, or that the court appoint counsel to
represent him, or to facilitate mediation. Id. at 2. The plaintiff attached
documentation verifying his allegations of suicide attempts and treatment, as
well as verifying that he was admitted to WRC June 7, 2018. Dkt. No. 36-1.
The court notes that the Department of Corrections’ inmate locator web site
also shows that the defendant has been in a supervised living facility (likely the
WRC) since June 7, 2018. https://appsdoc.wi.gov/lop/home.do (last visited
December 13, 2018).
The court regrets that the plaintiff has suffered from his illnesses over
the past year. Regarding the plaintiff’s first request—that the court dismiss his
case without prejudice so that he can file it again when he is up to it—the court
notes that the plaintiff’s complaint involves events that happened in early
November 2014—over four years ago now. When the plaintiff filed his
complaint on November 4, 2016, the Wisconsin statute of limitations for filing
personal injury claims was six years. Wis. Stat. §893.53 (effective through April
4, 2018). As of April 2018, however, the statute now reads, “An action to
recover damages for an injury to the character or rights of another, not arising
on contract, shall be commenced within 3 years after the cause of action
accrues, except where a different period is expressly prescribed, or be barred.”
Wis. Stat. §893.53. Under federal law, a claim for deliberate indifference
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accrues “when the plaintiff knows of his physical injury and its case;” the
“statute of limitations starts to run when the plaintiff discovers his injury and
its cause even if the full extent or severity of the injury is not yet known.”
Devbrow v. Kalu, 705 F.3d 765, 768 (7th Cir. 2013). If the court were to
dismiss the plaintiff’s case today—even without prejudice—it is possible that
the statute of limitations might prevent him from filing a new case raising the
same claims.
The court also notes that the plaintiff chose to bring this lawsuit. He
knew what the topic of the lawsuit was, and someone who files a lawsuit
should expect that the people he sues might not see things the same way he
does. The plaintiff says that reading the defendants’ summary judgment
triggered his trauma, so that he had panic attacks and psychotic episodes and
attempted suicide. The court does not want the plaintiff to suffer. But the
defendants have a right to defend against the plaintiff’s claims.
In the alternative, the plaintiff asks the court to appoint a lawyer to
represent him. He says that a lawyer would “ease some of the stress and
psychological triggers that are the direct result of the ongoing reliving of past
trauma from the rehashing of said events.” Dkt. No. 36 at 2. In a civil case, the
court has discretion to decide whether to recruit an attorney 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 must make a reasonable effort to hire
private counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
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In this district, the courts require a plaintiff to show that he contacted at least
three attorneys in an effort to hire counsel on his own. A plaintiff must provide
the court with the names of the attorneys he contacted as well as the dates of
contact and copies of any letters the plaintiff received in response to the
contact.
After the plaintiff makes that reasonable attempt 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). 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 shown that he tried to contact three lawyers. The
court understands that the plaintiff is in treatment and is struggling to manage
his illness. But he was able to provide his response to this court. He ought to
be able to write three letters to lawyers, asking them to help him. Even if the
plaintiff had shown the court that he’d tried to find a lawyer on his own,
however, the court would not appoint counsel to the plaintiff based on what he
has represented in his motion. As the plaintiff might imagine, almost every
inmate plaintiff asks the court to appoint a lawyer to represent him. The
majority of inmate plaintiffs have no money, are not lawyers and don’t have
legal training. Many of them suffer from mental illness. There are not enough
volunteer lawyers for the court to appoint one for every plaintiff who asks.
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When the court does appoint a lawyer for an inmate plaintiff, is because the
case has come to a point where the plaintiff needs to do more than file a
written explanation of what happened to him. This case has not reached that
point. At this point, if the plaintiff wants to respond to the motion for summary
judgment, he may do so by submitting a written brief and any evidence he has
that disputes the defendants’ version of the facts (including his own unsworn
declaration, which he may sign under 28 U.S.C. §1746). The court was able to
understand the plaintiff’s motion—it was clear and easy to read. The court is
convinced that, barring any emotional or psychological barriers, the plaintiff
can clearly and ably respond to the defendants’ motion. If any of the plaintiff’s
claims survive summary judgment, the plaintiff may renew his request that the
court appoint counsel to represent him for mediation or at trial.
Finally, the plaintiff suggests that “if the defendants through the court
might be able to mediate a settlement that all parties involved might seem just
and fair,” he would be willing to participate. This court is willing to refer cases
to magistrate judges for mediation if both sides agree. Of course, if the
defendants indicate to the court that they are willing to participate in
mediation, the court would be happy to refer the case to a magistrate judge for
that purpose. The plaintiff should be aware, however, that even if the
defendants agree, the magistrate judge may want to be sure that the plaintiff is
sufficiently mentally and emotionally stable that he can participate
meaningfully in a mediation.
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The court is not going to dismiss the case, for the reasons explained
above. Instead, the court will give the plaintiff an additional sixty days to file a
response to the defendants’ motion for summary judgment. If the plaintiff files
his response by the deadline the court sets, the defendants may file their reply
in support of their motion within the time frame the court set in the scheduling
order. If the plaintiff does not file a response by the deadline the court sets, the
court will consider whether to dismiss the case for failure to prosecute or rule
on the motion for summary judgment on its merits without the plaintiff’s input.
The court also notes, belatedly, that it never ruled on the defendants’
motion for an extension of time to file the summary judgment motion. It
rectifies that mistake here.
The court GRANTS the defendants’ motion for an extension of time to file
dispositive motions, nunc pro tunc to May 11, 2018. Dkt. No. 20.
The court DENIES WITHOUT PREJUDICE the plaintiff’s request in his
August 3, 2018 filing that the court appoint counsel to represent him. Dkt. No.
36.
The court ORDERS that if the plaintiff wants to respond to the
defendant’s motion for summary judgment, he must file his response in time
For the court to receive it by the end of the day on Friday, February 15, 2019.
Dated in Milwaukee, Wisconsin, this 17th day of December, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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