Gillispie v. Correct Care Solutions LLC et al

Filing 84

ORDER signed by Judge Pamela Pepper on 12/10/2018. 63 State defendants' motion to dismiss DENIED. 69 Medical defendants' motion to dismiss DENIED. 72 Medical defendants' motion for extension of time to file summary judgment mot ion GRANTED; medical defendants' summary judgment motion due 12/17/2018. Plaintiff's responses to state defendants' and medical defendants' motions for summary judgment due 1/25/2019, no extensions will be granted absent extraordinary circumstances. (cc: all counsel, via mail to Kevin Gillispie at Green Bay Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KEVIN EUGENE GILLISPIE,
Plaintiff,
Case No. 16-cv-1592-pp
v.
CORRECT CARE SOLUTIONS, LLC,
JOHN GOSSAGE, LARRY MALCOMSEN,
LIEUTENANT STEPHENS, OFFICER BOLTON,
ADEYEMI FATOKI, MD, and EMILY BLOZINSKI,
Defendants.
______________________________________________________________________________
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS (DKT. NO. 63),
DENYING DEFENDANTS’ MOTION TO DISMISS (DKT. NO. 69), AND
GRANTING DEFENDANTS’ RULE 7(h) MOTION FOR EXTENSION OF TIME
(DKT. NO. 72)
______________________________________________________________________________
The court issued its screening order on September 11, 2017. Dkt. No. 13.
The defendants either waived service or answered, and on November 2, 2017,
the court issued a scheduling order. Dkt. No. 27. In that order, the court
required the parties to complete their discovery by March 2, 2018, and to file
dispositive motions by April 3, 2018. Id. Since then, the plaintiff has filed four
motions to extend time to complete discovery. Dkt. Nos. 34, 47, 52, 54. The
court granted all these motions, with the result that the final deadline for the
plaintiff to respond to the defendants’ discovery demands was October 26,
2018. Dkt. No. 62. Practically, that means that the plaintiff had almost a year
(eleven months and twenty-four days) to conduct and respond to discovery—

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from November 2, 2017, when the court issued the scheduling order, to
October 26, 2018, the last deadline the court set.
On October 31, 2018—five days after the final deadline for completing
discovery—the court received from the plaintiff his responses to the defendants’
discovery demands. Dkt. Nos. 67, 67-1. The court cannot tell when the plaintiff
gave these documents to prison staff for filing, and he ignored the court’s
instructions in the scheduling order that he serve the discovery responses on
the defendants, rather than filing them with the court. See Dkt. No. 27 at 1
(“parties must serve discovery requests and responses . . . on the opposing
party, and must not file them with the court . . . .”).
The State defendants did not receive the discovery by October 26, 2018.
See Dkt. No. 65 at 1 (affidavit of counsel Amy Doyle, dated October 26, 2018).
As of October 31, 2018 at 4:49 p.m., the medical defendants had not received
the discovery responses. Dkt. No. 69. This is why all of the defendants have
asked the court to dismiss the plaintiff’s case.
Both sets of defendants remind the court that it has given the plaintiff an
unusually long time to respond to discovery demands. Dkt. Nos. 63, 69. Both
remind the court that in its September 20, 2018 order granting the last
extension, the court told the plaintiff that it would not grant any more motions
to extend time. Id. (citing Dkt. No. 62). Both remind the court that it told the
defendants that if they did not receive the discovery demands by day’s end on
October 26, 2018, they could file motions to dismiss. Id.

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The parties are justified in asking for dismissal under these
circumstances. While the court recognizes that it is hard for incarcerated
inmates to represent themselves when they aren’t lawyers and don’t always
know or understand the rules that govern litigation, it also notes that many,
many inmate plaintiffs manage to timely respond to discovery demands and do
what is necessary to move their lawsuits forward. Many inmates have a hard
time getting documents or records that are responsive to discovery demands,
but they manage to do so within the time the court provides. When the plaintiff
in this case finally did respond to the discovery demands, he did so only after
the court told him it wouldn’t grant any further extensions—which leads the
court to believe that he could have provided the information sooner, but didn’t
do so until push came to shove, as the saying goes. The defendants have
reason to be frustrated that they waited months to get discovery responses to
which they were entitled, and then have the defendant provide the responses
late, with no explanation.
Reluctantly, however, the court is going to deny the motions to dismiss.
The plaintiff has finally provided discovery responses. As the court said, it has
no way of knowing when he provided those responses to prison staff to file, so
it can’t know whether the five-day delay was the plaintiff’s fault or the fault of
the staff. While the plaintiff did not follow the rules requiring him to serve his
responses on the defendants, instead of filing them with the court, the fact that
he did file them with the court meant that the defendants got them on October
31, a (relatively) short five days after the deadline. The court does not wish to
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reward the plaintiff for failing to comply with this court’s order and failing to
follow its rules. But under these circumstances, given the law requiring that
courts be (somewhat) lenient with parties who represent themselves, the court
is going to deny the motions.
The court notes, however, that on December 7, 2018, the State
defendants filed their motion for summary judgment and required
attachments. Dkt. Nos. 73-83. The medical defendants have filed a motion
under Civil L.R. 7(h), asking the court to extend the deadline for filing their
summary judgment motion until Monday, December 17, 2018. Dkt. No. 72.
The court is going to grant the medical defendants’ motion, and allow them a
deadline of December 17, 2018 to file their motion for summary judgment. The
court is going to require that the plaintiff respond to both motions by the end of
the day on Friday, January 25, 2019. The court will not entertain any requests
from the plaintiff for extensions of that deadline, unless something
extraordinary happens—the plaintiff becomes ill or injured and cannot respond
for medical reasons, for example. The court will not extend that deadline for
reasons such as the plaintiff not being a lawyer, or not understanding the
rules, or not being able to find a jailhouse lawyer to help him, or not having
access to the law library as frequently as he’d like. The plaintiff must file his
opposition materials to the defendants’ motions for summary judgment in time
for the court and the defendants to receive them by the end of the day on
January 25, 2019. If that means the plaintiff needs to get the materials to
prison staff a week ahead of time, so be it. It is up to the plaintiff to make sure
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that he complies with this order. If the plaintiff does not file some kind of
opposition by the end of the day on January 25, 2019, the court will consider
the defendants’ motions without his input.
The court notes that for summary judgment motions, the court must
decide whether there are any genuine disputes between the parties as to any
material (important to the claims) facts. If the plaintiff disputes any of the
defendants’ proposed findings of facts, he must submit some sort of evidence—
his own unsworn declaration under 28 U.S.C. §1746, a grievance form, a letter,
an HSU request/response—showing that there is a genuine dispute about the
fact. If he doesn’t dispute any of the facts, then the court will decide whether,
under the law that applies, it is appropriate to enter judgment in favor of the
defendants. The plaintiff should know the evidence about the facts, and should
have access to the documents he might need to contest any of the defendants’
facts. As to the law, the court has given the plaintiff more than five weeks to
respond to the State defendants’ motion, and five weeks to respond to the
medical defendants’ motion. That should be enough time for him to be able to
visit the law library a few times to do the research he needs.
The court DENIES the State defendants’ motion to dismiss for failure to
prosecute. Dkt. No. 63.
The court DENIES the medical defendants’ motion to dismiss for failure
to prosecute. Dkt. No. 69.
The court GRANTS the medical defendants’ Civil Rule 7(h) motion to
extend the deadline to file summary judgment materials. Dkt. No. 72.
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The court ORDERS that the medical defendants shall file any motion for
summary judgment and supporting materials in time for the court to receive
them by the end of the day on December 17, 2018.
The court ORDERS that the plaintiff shall file his opposition responses to
the summary judgment motions of both sets of defendants in time for the court
to receive them by the end of the day on January 25, 2019. The court will not
grant any extensions of that deadline absent extraordinary circumstances.
Dated in Milwaukee, Wisconsin this 10th day of December, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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