Riley v. Franke et al

Filing 28

ORDER signed by Judge J.P. Stadtmueller on 4/6/2018: DENYING 25 Plaintiff's Motion for Extension of Discovery and Dispositive Motion Deadlines; DENYING 26 Plaintiff's Motion to Compel Discovery Responses; and DENYING without prejudice 27 Plaintiff's Third Motion to Appoint Counsel. (cc: all counsel, via mail to Shawn Riley at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHAWN RILEY,
Plaintiff,
v.

Case No. 17-CV-891-JPS

JARED FRANKE, THOMAS
CAMPBELL, MARILYN
VANDERKINTER, and BRENDA
KARNZ,

ORDER
Defendants.
Plaintiff, who is incarcerated at the Wisconsin Secure Program
Facility, filed a pro se complaint claiming his civil rights were violated. See
(Docket #1). Before the Court are Plaintiff’s motion for an extension of
time to complete discovery and file dispositive motions, (Docket #25), his
motion to compel discovery responses, (Docket #26), and his third motion
requesting the appointment of counsel, (Docket #27). For the reasons
stated below, the motions will be denied.
1.

Motion for Extension of Time and Motion to Compel Discovery
Responses
First the Court will address the motion for extension of time and

the motion to compel discovery responses, which are related to each other.
In the motion for extension of time, Plaintiff complains that he
inadvertently failed to properly serve written discovery requests on
Defendants. (Docket #25 at 1). He e-filed the requests with the Court on
January 17, 2018 rather than serve them directly on Defendants by mail or

other agreed-upon means, as the procedural rules require. Id.; (Docket
#22).
On March 7, 2018, nearly two months after he e-filed the requests,
he wrote to Defendants and learned that Defendants did not plan to
respond to them, as service was not proper. (Docket #25 at 2). Further,
there was insufficient time remaining prior to the April 2, 2018 discovery
cutoff date even if he properly re-served the requests. Id. Plaintiff asks the
Court for an extension of the discovery deadline and the dispositive
motion deadline to afford him time to re-serve his discovery requests,
pleading that in light of his pro se status he was confused about the
discovery procedures. Id.
Plaintiff’s motion is without merit. It is unfortunate that he became
confused about the procedural rules applicable to his case, but even pro se
litigants are expected to familiarize themselves with the rules that govern
proceedings in this Court. Moreover, the Court clearly and unmistakably
warned Plaintiff of the requirements for serving discovery requests in its
scheduling order, issued on October 13, 2017. (Docket #19). The Court
stated that:
All requests for discovery shall be served by a date
sufficiently early so that all discovery is completed no later
than Monday, April 2, 2018. The plaintiff is instructed that
discovery requests must be served on the defendant to
whom they are directed by mail or other means of delivery.
Simply filing discovery requests with the Court, either
electronically or by mail, will not qualify as service of those
requests pursuant to the Federal Rules of Civil Procedure.
Id. at 2. The Court issues this warning in every prisoner case in order to
avoid the very error Plaintiff made here. He is responsible for carefully
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reading and complying with the Court’s orders. Additionally, the Clerk of
the Court sent Plaintiff a similar notice after he e-filed his discovery
requests in January, informing him that discovery requests must not be
filed with the Court. (Docket #23). Again, he seems to have ignored this
instruction.
Moreover, Plaintiff gives no reason why he waited until two
months after the discovery period opened in October 2017 to try to serve
his discovery requests on Defendants. Had he done so earlier, he might
have learned of his error in service in time to correct it. Filing a motion to
save himself from this error mere days before the discovery deadline—his
motions were filed on March 28, 2018—does not elicit sympathy.
For similar reasons, the Court will deny Plaintiff’s motion to
compel. (Docket #26). In it, Plaintiff asks the Court to compel responses to
a set of discovery requests he sent to Defendants on March 12, 2018.
(Docket #26 at 1). That date is only three weeks from the April 2 discovery
cutoff date. Plaintiff did not afford Defendants the full thirty days they are
entitled to under the discovery rules to prepare and serve their responses.
As such, Plaintiff’s discovery requests violate the Court’s scheduling
order, which warned him to serve his discovery requests “sufficiently early
so that all discovery is completed no later than Monday, April 2, 2018.” Id.
(emphasis added). Defendants cannot be forced to rush to make up for
Plaintiff’s belated attempts at discovery.
For these reasons, both the motion for extension of time and the
motion to compel must be denied.

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2.

Third Motion for Appointment of Counsel
Plaintiff’s alleged discovery dilemma dovetails into his other

pending request: that he needs the assistance of counsel in light of his
failure to properly navigate discovery. (Docket #27 at 1–2). 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
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 two motions for appointment of counsel, which the
Court denied, (Docket #14, #20), Plaintiff’s instant request for counsel
must be denied because, notwithstanding his efforts to obtain his own
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counsel, he has not presented any evidence or argument showing that he
cannot litigate this matter competently on his own. His lone argument in
the instant motion is that his error in serving his discovery requests
demonstrates his incompetence. See (Docket #27 at 2–3).
But Plaintiff’s error was entirely his own and resulted from his
failure to read the applicable rules and Court orders. The Court will not
countenance this failure by appointing him counsel. To the extent Plaintiff
leans on his lack of legal training, the Court has already explained that his
lack of training is commonplace among prisoners and does not, on its
own, warrant the appointment of counsel. (Docket #20 at 2). And, as
before, 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). His request for counsel will, therefore, be denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for extension of the
discovery and dispositive motion deadlines (Docket #25) be and the same
is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to compel
discovery responses (Docket #26) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s third motion for
appointment of counsel (Docket #27) be and the same is hereby DENIED
without prejudice.

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Dated at Milwaukee, Wisconsin, this 6th day of April, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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