Redman v. Doehling et al

Filing 19

ORDER signed by Judge J.P. Stadtmueller on 8/14/2017 DENYING without prejudice 18 Plaintiff's Motion to Compel Discovery Responses and Second Motion for Appointment of Counsel. (cc: all counsel, via mail to Richard H. Redman at Redgranite Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICHARD H. REDMAN,
Plaintiff,
v.

Case No. 17-CV-239-JPS

LORI DOEHLING and CHRISTINE
DIETRICH,
Defendants.

ORDER

Plaintiff, who is incarcerated at Redgranite Correctional Institution,
filed a pro se complaint claiming his civil rights were violated. See (Docket
#1). Before the Court is Plaintiff’s motion to compel discovery responses
and requesting the appointment of counsel. (Docket #18). For the reasons
stated below, the motion will be denied in all respects.
1.

Motion to Compel Discovery Responses
First, as to the discovery-related portion of the motion, Plaintiff’s

rambling complaints about Defendants’ litigation conduct do not
coherently present a basis for granting relief. The primary thrust of the
motion seems to be that in order to produce medical records to Plaintiff,
Defendants requested that he sign medical release authorization forms.
(Docket #18 at 1). He took issue with some of the language in the
proposed releases, and Defendants revised them and resent them. Id. at 1–
2. Plaintiff accuses Defendants’ counsel of purposefully delaying this
revision process so as to run out the time for discovery. See id.
These concerns do not warrant an order from the Court compelling
Defendants to produce documents or otherwise respond to discovery. It

appears that Defendants are indeed happy to do so, if only Plaintiff would
return a medical records release authorization. Further, Plaintiff is simply
mistaken in his belief that should the August 25, 2017 discovery deadline
pass, (Docket #13 at 2), Defendants will no longer serve any discovery
responses. Assuming that Plaintiff’s discovery requests were properly and
timely served, the mere fact that the cut-off date passes will not obviate
Defendants’ obligation to respond. In fact, because the dispositive motion
deadline is not until September 25, 2017, id., the parties have a significant
window of time in which to accommodate any straggling discovery
matters. It should also be noted that Plaintiff’s bare, speculative
allegations of Defendants’ malfeasance with respect to the discovery
deadline are totally unsupported by the record.
Next, Plaintiff suggests in his motion that several prison officials
(who are not defendants in this case) have been trying to inhibit his access
to his medical records. (Docket #18 at 2–3). He does not identify what
relief he would like the Court to provide, and his stream-of-consciousness
narrative on the topic is not sufficient as a factually and legally supported
request for relief in any event.
Finally, Plaintiff complains that he received responses to some of
his discovery requests in late July, but that the responses “are nowhere
near what they should be.” Id. at 3. Again, this cursory complaint about
the sufficiency of discovery responses falls well short of meeting Plaintiff’s
burden to show that an order compelling supplemental responses is
warranted. See Design Basics, Inc. v. Granite Ridge Builders, Inc., No. 1:06CV-72, 2007 WL 1830809, at *2 (N.D. Ind. June 21, 2007) (noting that the
initial burden rests on the party seeking discovery to explain how the
Page 2 of 5

responses received are inadequate or incomplete) (citing James Wm.
Moore, 7 Moore’s Federal Practice § 37.05[5] (3rd ed.)). Nor is it clear from
the record that Plaintiff engaged in meaningful efforts to meet and confer
with Defendants in an effort to resolve his concerns prior to seeking the
Court’s intervention, as is required by the rules of this Court. See Fed. R.
Civ. P. 37(a)(1); Civ. L. R. 37; Williams v. Frank, No. 06C1051, 2007 WL
1217358, at *1 (E.D. Wis. Apr. 19, 2007).
For these reasons, the Court must deny Plaintiff’s motion to compel
discovery responses.
2.

Motion for Appointment of Counsel
Plaintiff’s alleged discovery dilemmas dovetail into his second

request: that he needs the assistance of counsel to help deal with these
issues. (Docket #18 at 4). Yet, as a civil litigant, Plaintiff has no automatic
right to court-appointed counsel. Luttrell v. Nickel, 129 F.3d 933, 936 (7th
Cir. 1997). However, under 28 U.S.C. § 1915(e)(1), the “court may request
an attorney to represent any person unable to afford counsel.” The court
should seek counsel to represent the plaintiff if: (1) he has made
reasonable attempts to secure counsel; and (2) “‘the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013) (quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en
banc)).
The Seventh Circuit has emphasized that “[t]he question is not
whether a lawyer would present the case more effectively than the pro se
plaintiff; ‘if that were the test, district judges would be required to request
counsel for every indigent litigant.’” Pruitt, 503 F.3d at 655 (quoting
Page 3 of 5

Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006)) (internal quotation
omitted). Instead, “[t]he question is whether the plaintiff appears
competent to litigate his own claims, given their degree of difficulty, and
this includes the tasks that normally attend litigation: evidence gathering,
preparing and responding to motions and other court filings, and trial.”
Id.
As with his first motion for appointment of counsel, which the
Court denied at the screening stage, (Docket #6), Plaintiff’s instant request
for counsel must be denied because, notwithstanding his efforts to obtain
his own counsel, he has not presented any evidence or argument showing
that he cannot litigate this matter competently on his own. First, he
expresses frustration about the course of discovery thus far and claims
that counsel will be better able to obtain the discovery he seeks. See
(Docket #18 at 3–4). This is merely a complaint that counsel might be
better at litigating than Plaintiff, but the Seventh Circuit has squarely
rejected this sort of reasoning. Pruitt, 503 F.3d at 655. Plaintiff has not
submitted any evidence that he suffers from cognitive, behavioral, or
other limitations affecting his ability to present his arguments in a cogent
fashion. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014). All his
filings and submissions so far in this case suggest that the opposite is true.
Second, Plaintiff asks the Court to reconsider the grounds for
appointment of counsel he raised in his first motion. (Docket #18 at 4). The
Court already considered those reasons and rejected them. For instance,
Plaintiff’s low education level, lack of legal training, and the difficulties
inherent in litigating a matter from behind prison bars are not reasons that
Plaintiff is unable to litigate this matter himself. They are instead simply
Page 4 of 5

reasons that counsel might do better. Pruitt, 503 F.3d at 655. Further, to the
extent Plaintiff claims that the medical issues in this case are too complex
for him to comprehend, (Docket #3 at 3), the Court does not agree.
Plaintiff has demonstrated a good knowledge of the medical issues in
play, and those issues do not render the case insurmountably complex.
Finally, regarding Plaintiff’s citation to the difficulties of trial practice and
cross-examination, id. at 3–4, those concerns about the future do not
require that counsel be appointed at this time.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to compel discovery
responses and second motion for appointment of counsel (Docket #18) be
and the same is hereby DENIED without prejudice.
Dated at Milwaukee, Wisconsin, this 14th day of August, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 5 of 5