Freeman v. Eckstein et al

Filing 40

ORDER signed by Judge J.P. Stadtmueller on 5/25/2018: DENYING 37 Plaintiff's Motion for Reconsideration of Court's Denial of Appointed Counsel and DENYING 38 Plaintiff's Motion to Compel Discovery. (cc: all counsel, via mail to Dwayne Freeman at Redgranite Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DWAYNE FREEMAN,
Plaintiff,
Case No. 17-CV-958-JPS

v.
TONIA ROSMARYNOSKI,
ALEJANDRO MARTINEZ, and JEAN
LUTSEY,

ORDER

Defendants.
Before the Court are two motions filed by the plaintiff, Dwayne
Freeman (“Freeman”). First, Freeman asks that the Court reconsider its
order denying his second motion for the appointment of counsel. (Docket
#37). The motion for reconsideration will be denied.
As noted in the Court’s previous orders denying Freeman appointed
counsel, see (Docket #19 and #24), the Court seeks counsel to represent a
plaintiff only if the plaintiff: (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)). Freeman asserts that his low
intelligence and lack of legal background prevent him from competently
litigating this case, that his access to legal materials in prison is severely
limited, and that he does not know how to use a computer. See (Docket #37
at 2–4). The Court previously found that this case does not exceed the
plaintiff’s capacity to present it, and nothing has changed in the interim to
upset that conclusion. Almost every inmate who files a lawsuit asks the

court to appoint him or her a lawyer. Most of them have no legal training,
cannot afford a lawyer, and have only limited access to the prison’s legal
materials. Many of them have mental or medical issues that inhibit in some
way their ability to prosecute their cases. The Court simply does not have
the resources to provide counsel for everyone who asks; the Court can
appoint counsel only in those cases where the issues have become so
complicated that the plaintiff cannot explain them himself. Freeman has not
shown that to be the case here. His motion for reconsideration of the Court’s
order denying him appointed counsel will be denied.
Next, Freeman filed a motion to compel discovery. (Docket #38). He
asks, first, that the Court compel the defendants to make the initial
disclosures described in Federal Rule of Civil Procedure 26(a)(1)(A). Id.
However, Rule 26 initial disclosures are not required in an “action brought
without an attorney by a person in the custody of the United States, a state,
or a state subdivision[.]” Fed. R. Civ. P. 26(a)(1)(B)(v). Because this is a case
brought by a pro se plaintiff in state custody, the defendants need not make
Rule 26 initial disclosures.
Freeman also asks that the Court compel the defendants to respond
to discovery requests that he sent to them on March 21, 2018. (Docket #38).
However, these requests were served too late. The Federal Rules of Civil
Procedure outline the process parties must follow to collect discovery from
one another. Rule 33 allows a party to serve interrogatories on the other
side; Rule 33(b)(2) requires the other side to respond to the interrogatories
within thirty days. Rule 34 allows a party to ask the other side to produce
documents; Rule 34(b)(2)(A) requires that the opposing party respond to
such requests within thirty days. Rule 36 allows a party to serve on the other
side requests for admission; Rule 36(a)(3) says that the matter is “admitted
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unless, within 30 days after being served,” the opposing party serves a
written answer or objection.
In this case, if Freeman served his requests on March 21, 2018, as he
says he did, the responses to his requests would have been due thirty days
later, on April 20, 2018. However, the Court’s trial scheduling order set a
deadline of April 2, 2018 for the completion of discovery. (Docket #16 at 2).
In other words, the discovery process, including defendants’ responses to
the plaintiff’s discovery requests, had to be completed by April 2.
Compelling the defendants to respond to Freeman’s requests would
effectively extend the discovery deadline by several weeks, and as the
Court made clear in its trial scheduling order, the deadlines in this branch
of the court are firm.
Freeman had five months to serve his discovery requests on the
defendants, and the Court will not excuse his tardiness by granting a
motion to compel responses to Freeman’s eleventh-hour requests.
Accordingly,
IT IS ORDERED that Freeman’s motion for reconsideration of the
Court’s order denying him appointed counsel (Docket #37) be and the same
is hereby DENIED; and
IT IS FURTHER ORDERED that Freeman’s motion to compel
(Docket #38) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 25th day of May, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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