Bergeron Davila v. Teeling et al
Filing
53
ORDER signed by Judge J.P. Stadtmueller on 10/16/2017: DENYING 40 Plaintiff's Motion to Appoint Counsel and to Stay Case and DENYING 21 and 22 Plaintiff's Motions to Compel. (cc: all counsel, via mail to Raymond J. Bergeron Davila at Waupun Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,
v.
Plaintiff,
BARBARA A. TEELING, BRAD
FRIEND, MELISSA MORAN,
ANTHONY LACOMBE, GREGORY
BUCHOLTZ, ROBERT A.
MASTRONARDI, STEVEN M.
CLOPE, and NICOLE L. PETERSEN,
Case No. 17-CV-337-JPS
ORDER
Defendants.
The Court will address certain outstanding motions. On September
28, 2017, Plaintiff filed a joint motion for appointment of counsel and to stay
this matter. (Docket #40). 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 a plaintiff if the person: (1) 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)).
As the Court has already informed Plaintiff, it will not consider any
motions for appointment of counsel until the discovery period closes on
January 22, 2018. (Docket #19 at 6). The motion would be denied on its
merits, in any event. As to the first Pruitt element, Plaintiff states that he
cannot afford postage to contact lawyers, and receives only two free
envelopes per month, which he uses in furthering his various civil lawsuits.
(Docket #40 at 1). This explanation is unsatisfactory. Plaintiff’s limited
ability to contact lawyers, though regrettable, is common to nearly all
inmates. Further, he has the freedom to use his state-issued envelopes as he
desires, and chose not to use them to establish the proper basis for
appointment of counsel.1
As to the second Pruitt element, Plaintiff has not demonstrated that
this case’s complexity exceeds his capacity to present it. Indeed, while the
Court has not agreed with every position Plaintiff has taken in his filings,
the filings have generally been cogent and well-organized, citing both law
and evidence where appropriate. See, e.g., (Docket #34). As Pruitt makes
clear, the question is not whether Plaintiff would fare better with the
assistance of counsel, it is whether he is capable of litigating this case on his
own. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014). Plaintiff
appears to have a clear understanding of his theory of the case and has
advanced it in a coherent manner, including seeking extensive and detailed
discovery materials. See (Docket #21 and #22). Plaintiff’s motion for
appointment of counsel will, therefore, be denied.2
In the same motion, Plaintiff seeks a stay of these proceedings.
(Docket #40 at 3). Plaintiff seems to believe that denial of his motion for
Plaintiff need not use the mail system to contact the Court—he resides at
an institution which participates in the Prisoner E-Filing Program. See (Docket #19
at 6-7). He must be using the envelopes for some other reason, perhaps for
discovery purposes. No matter what their actual use, Plaintiff could have sent
them to lawyers seeking representation, but did not do so.
1
Plaintiff suggests that another Court of Appeals decision, Matz, “bypasses
the Pruitt test.” (Docket #40 at 1); id. at 2 (“Plaintiff argues the Pruitt test doesn’t
apply to him[.]”); Matz v. Frank, 340 F. App’x 323 (7th Cir. 2009). This is incorrect.
Matz cited and applied the very same Pruitt standards as the Court has done here.
Matz, 340 F. App’x at 328-29.
2
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appointment of counsel was a foregone conclusion, and indicates that he
intends to appeal the denial immediately and wishes to stay this case in the
interim. Id. Denial of a motion for appointment of counsel is a non-final
order. An attempted appeal of such an order is procedurally improper and
thus fails to divest the Court of jurisdiction and authority to dispose of the
case. See JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co., Ltd., 707 F.3d
853, 860 n.7 (7th Cir. 2013); Wis. Mut. Ins. Co. v. United States, 441 F.3d 502,
504-05 (7th Cir. 2006); Kaszuk v. Bakery & Confectionery Union & Industry Int’l
Pension Fund, 791 F.2d 548, 558-59 (7th Cir. 1986). The motion to stay will be
denied. The Court notes that whether or not Plaintiff attempts to appeal the
instant order, the schedule and deadlines previously set in this matter will
remain in effect, and this action will be dismissed if he does not comply
with them.
On September 8, 2017, Plaintiff filed two motions to compel
discovery responses and to sanction Defendants for failing to respond
appropriately. (Docket #21 and #22). The Court cannot reach the substance
of his motions because he has not followed the procedures for bringing
them. Namely, Plaintiff has not complied with Civil Local Rule 37’s
requirement that good faith efforts be made to resolve a dispute before the
filing of a motion to compel. The Rule provides as follows:
All motions to compel disclosure or discovery
pursuant to Fed. R. Civ. P. 26 through 37 must be
accompanied by a written certification by the movant that,
after the movant in good faith has conferred or attempted to
confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action, the
parties are unable to reach an accord. The statement must
recite the date and time of the conference or conferences and
the names of all parties participating in the conference or
conferences.
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Civil L. R. 37. Plaintiff’s submissions fail in two ways. First, they clearly lack
the appropriate certification. Both motions state that “plaintiff has made
attempt to resolve this issue with Defendants’ counsel” to “no avail.”
(Docket #21 at 1; Docket #22 at 1). These single sentences do not assert that
the attempt at conferring with Defendants was made in good faith, and do
not recite the date and time of any conference or the participating parties.
In Plaintiff’s case, his incarceration precludes holding an in-person
conference, so his certification should have instead contained an
explanation of the date and substance of his communications with
Defendants’ counsel regarding his motions, whether by phone or letter.
Second, the lack of the detail about Plaintiff’s communications is
more than a mere technical failing. The purpose of Civil Local Rule 37 is for
parties to confer on their discovery disputes and present each other with all
of their arguments thereon. Thus, when the parties turn to the Court for
resolution of the dispute, the Court can rest assured that each argument
presented to it was considered by the parties, but could not be amicably
resolved. Without an appropriately detailed certification from Plaintiff, the
Court cannot conclude that this actually occurred. Though Plaintiff makes
various assertions about his meet-and-confer attempts in his reply, the
certification contemplated by Civil Local Rule 37 must be included within,
or filed contemporaneously with, the motion to compel itself.
The Court closes by noting that Plaintiff’s reply in support of his
motions to compel also mentions an immediate appeal. Denial of a motion
to compel is also a non-final order. As discussed above, any such appeal
would have no effect on the continued progress of this case.
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Accordingly,
IT IS ORDERED that Plaintiff’s motion for appointment of counsel
and to stay this case (Docket #40) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motions to compel
(Docket #21 and #22) be and the same are hereby DENIED.
Dated at Milwaukee, Wisconsin, this 16th day of October, 2017.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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