Carter v. Maher

Filing 39

ORDER signed by Judge Pamela Pepper on 4/18/2018. 27 Plaintiff's motion for recusal DENIED. 34 Plaintiff's request to withdraw motion to compel GRANTED; 28 Plaintiff's motion to compel WITHDRAWN. 32 Plaintiff's motion to strike DENIED as moot. 37 Plaintiff's motion to appoint counsel DENIED without prejudice. 38 Plaintiff's motion for investigation DENIED. (cc: all counsel, via mail to Tommie Carter at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TOMMIE L. CARTER,
Plaintiff,
v.

Case No. 17-cv-1297-pp

JUSTIN MAHER,
Defendant.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL (DKT. NO. 27),
GRANTING PLAINTIFF’S REQUEST TO WITHDRAW MOTION TO COMPEL
(DKT. NO. 34), WITHDRAWING MOTION TO COMPEL (DKT. NO. 28),
DENYING AS MOOT PLAINTIFF’S MOTION TO STRIKE (DKT. NO. 32),
DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 37) AND
DENYING PLAINTIFF’S MOTION FOR AN INVESTIGATION (DKT. NO. 38)
______________________________________________________________________________
Plaintiff Tommie L. Carter is a Wisconsin state prisoner representing
himself. He filed a complaint alleging that the defendant, Officer Justin Maher,
did not give him his inhaler or alert medical staff when the plaintiff suffered an
asthma attack. Dkt. No. 1. On October 10, 2017, Magistrate Judge David E.
Jones screened the complaint and allowed the plaintiff to proceed on an Eighth
Amendment claim of deliberate indifference to a serious medical need. Dkt. No.
10 at 6-7. The clerk’s office later reassigned the case to this court because the
defendant did not consent to a magistrate judge presiding over his case. Dkt.
No. 13. The plaintiff has filed a motion for recusal, dkt. no. 27, a motion to
compel, dkt. no. 28, a motion to strike his January 23, 2018, letter, dkt. no.

1

32, a motion to appoint counsel, dkt. no. 37 and a motion for an investigation,
dkt. no. 38.
1.

Motion for Recusal

In his January 24, 2018, motion for recusal, the plaintiff asks that I
recuse myself from his case, stating that I am “purportedly colluding with the
defendant and their attorney against the plaintiff.” Dkt. No. 27 at 1. The
plaintiff asserts that he believes that I will prejudge this case based on my
“long professional and social relationship with the defendant[’s] attorney . . . .”
Id. In support of this argument, the plaintiff asserts that, while I am “fully
aware” that the defendant answered the complaint in December, 2017, I have
“deliberately refused” to send him a scheduling order, and have ignored his
request for one. Id.
Section 144 of Title 28 of the United States Code says that if a party files
a timely and sufficient affidavit “that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of any
adverse party,” that judge must reassign the case to another judge. The statute
says that the affidavit has to “state the facts and the reasons for the belief that
bias or prejudice exists.” The court is willing to consider the plaintiff’s motion
to be an “affidavit.” But it does not state sufficient facts showing that I am
personally biased or prejudiced against him. According to the court docket, the
defendant is represented by an attorney named Ann M. Peacock, from the
Wisconsin Department of Justice in Madison, Wisconsin. As far as I recall, I
don’t know an attorney named Ann Peacock with the Wisconsin Department of
2

Justice; if ever I have met her in the past, I do not remember having done so. I
don’t have a “long professional and social relationship” with Attorney Peacock; I
don’t have any relationship with Attorney Peacock.
The plaintiff says that the proof that I am biased against him is that I
have not issued a scheduling order in his case. But I have issued a scheduling
order. I issued that order on January 22, 2018—a little over a month after the
defendant answered the complaint. Dkt. No. 26. That order set a discovery
deadline of May 25, 2018, and a deadline for filing dispositive motions of June
29, 2018. Id. I am sending a copy of that order to the plaintiff along with this
order.
Section 455 of Title 28 requires a judge to disqualify herself “in any
proceeding in which [her] impartiality might reasonably be questioned.” It also
requires a judge to recuse herself if she has a personal bias or prejudice
against any party, or personal knowledge of disputed facts. I don’t know the
plaintiff, Mr. Carter, and I don’t have any reason to be biased or prejudiced
against him. I don’t know defendant Justin Maher, and have no reason to be
biased in his favor. It did take me over a month after the defendant answered
to issue the scheduling order; that is due in great part to the fact that, because
of the death of one judge on this court and the retirement of another, we are
short-handed, and the number of cases filed in our court has increased. To my
regret, this means that I am behind on many cases. I wish that I were not. My
delay in issuing orders is not the result of bias or prejudice; it is the result of

3

the amount of work that results from a case load of hundreds of criminal and
civil cases.
The plaintiff has not stated a basis for me to recuse myself, and I will
deny his motion asking me to do so.
2.

Motion to Compel

On the same date that the court received his motion for recusal, the
court received from the plaintiff a motion to compel discovery. Dkt. No. 28. The
plaintiff states that in December 2017, he served on the defendant a request for
production of documents, admissions and interrogatories, but that the
defendant did not respond in thirty days. Dkt. No. 29. In response, the
defendant states that, as he informed the plaintiff, discovery could not start
until the court issued the scheduling order (on January 22, 2018), and says
that he explained to the plaintiff that he would respond to the plaintiff’s
discovery requests thirty days after January 22. Dkt. No. 33. In his reply, the
plaintiff says that while he previously incorrectly thought that the court had
colluded with the defendant by refusing to timely issue a scheduling order, he
now realizes that because of the court’s heavy hearing calendar in December
2017 and trial in January 2018, it could not issue orders during that time.
Dkt. No. 34. The plaintiff states that he therefore wants to withdraw his motion
to compel. Id.
The court will grant the plaintiff’s request to withdraw his motion to
compel.

4

3.

Plaintiff’s Motion to Strike

The plaintiff sent the court a letter dated January 23, 2018 (the court
received it on January 25), in which he reiterated his assertion of “collu[sion]”
between the court and the defendant. Dkt. No. 31. Based on his letter, the
plaintiff appears to take issue with the amount of time it took for the court to
issue a scheduling order and the fact that discovery did not begin until after
the court issued the scheduling order. Id.
A day or two after the plaintiff submitted his letter, he filed a motion to
strike the letter. Dkt. No. 32. The plaintiff explained that he was angry when he
wrote the letter, and he apologized for using the letter to vent his anger. Id. He
also stated that he had been acting impolitely lately and that he would speak
with his psychologist about his negative behavior. Id.
The court appreciates the plaintiff’s apology. The court understands that
it must be very frustrating to be in custody, and to not hear from the court, or
the defendant, when he expects to. But the court encourages the plaintiff to
think hard before sending letters such as the one he sent to the court. It is
important, even when they are frustrated, that the parties act civilly toward
each other and toward the court; the court tries very hard, even when it is
frustrated, to treat the parties with respect and civility.
The court will deny as moot the plaintiff’s motion to strike his letter; the
court has accepted the plaintiff’s apology, and hopefully we can move on with
his case in a civil manner.

5

4.

Motion to Appoint Counsel

On April 9, the court received from the plaintiff asking the court to
appoint a lawyer to represent him. Dkt. No. 37. The plaintiff says that he has
contacted at least fifty lawyers, but hasn’t been able to find one. Other inmates
have been helping him, but he says he is not competent to try the case himself,
and he’ll need medical evidence. He also says he has encountered “discovery
complications,” and says he has a history of being suicidal. He says if he has a
lawyer, the outcome of his case will be very different. Id. at 1. He concludes by
asking the court to appoint counsel because he lacks legal experience, and
because “complex” discovery rules put him at a disadvantage in “countering
the defendant’s discovery tactics.” Id. at 2. The plaintiff attached to the motion
nine pages of letters from lawyers whom he’d contacted; all of them declined to
represent him. Dkt. No. 37-1.
In a civil case, the court has the discretion to recruit counsel for
individuals unable to afford one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir.
2013); 28 U.S.C. §1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d
864, 866-67 (7th Cir. 2013). First, however, the plaintiff must make reasonable
efforts to hire counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). Generally, to show the court that he has tried to find a lawyer on his
own, the court requires a plaintiff to contact at least three attorneys, and to
provide the court with (1) the attorneys’ names, (2) their addresses, (3) the date
and the way the plaintiff attempted to contact them, and (4) the attorneys’
responses.
6

After the plaintiff demonstrates that he has made a reasonable attempt
to find an attorney on his own, the court will decide “whether the difficulty of
the case—factually and legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.” Navejar, 718 F.3d at 696 (citing Pruitt, 503
F.3d at 655). The court looks, not only at a plaintiff’s ability to try his case, but
also at his ability to perform other “tasks that normally attend litigation,” such
as “evidence gathering” and “preparing and responding to motions.” Id.
“[D]eciding whether to recruit counsel ‘is a difficult decision: Almost everyone
would benefit from having a lawyer, but there are too many indigent litigants
and too few lawyering willing and able to volunteer for these cases.’” Henderson
v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (quoting Olson v. Morgan, 750
F.3d 708, 711 (7th Cir. 2014)).
The court agrees with the plaintiff that he has made reasonable efforts to
find counsel on his own. He has met the first requirement of the Pruitt test.
The court will not, however, grant his motion to appoint counsel at this point in
the case. The plaintiff already has demonstrated that he knows how to serve
discovery demands, and the defendant has acknowledged that he will comply
with the plaintiff’s discovery requests to date. The deadline for completing
discovery does not expire until May 25, 2018; the plaintiff has time to ask the
defendant for clarification or additional discovery if what he has received so far
is not sufficient. At this point, the court concludes that, despite the plaintiff’s
health issues and the fact that he does not have legal training, he is capable of
representing himself. If the case reaches a point where the plaintiff needs an
7

attorney to appear for him in court, or where the court believes that it is
necessary for the parties to present evidence, the plaintiff may renew his
motion at that time.
5.

Motion for Investigation

Finally, on April 12, 2018, the court received from the plaintiff a motion
for an investigation. Dkt. No. 38. The plaintiff states that on April 10, 2018—
months after he filed his case—an officer named Anderson searched his cell
(while the plaintiff was in the law library) and took evidence that the plaintiff
planned to use in this case. Id. at 1. He says that Officer Anderson has
harassed him and threatened him, and that Anderson’s actions were designed
to obstruct the plaintiff’s access to this court. He also alleges that Anderson
was trying to send the plaintiff a “message” that any time the plaintiff files a
complaint on Anderson, Anderson will interfere with the plaintiff’s rights. Id.
The plaintiff asks that “a prompt investigation be conducted” of Anderson’s
actions. Id. at 2.
The court will deny the plaintiff’s motion. This court is not the
disciplinary authority for prison staff members who violate an inmate’s rights.
The appropriate first step for the plaintiff to take is to use the Inmate
Complaint Review System (“ICRS”) and file a grievance, or a complaint, about
Anderson’s alleged behavior. This will notify prison staff that the plaintiff
believes Anderson has violated his rights, and the prison staff can conduct an
investigation. If the ICRS process does not resolve the plaintiff’s concerns, the
plaintiff can consider whether he believes that Anderson has violated his
8

constitutional rights, and if so, he may consider whether to file a separate case
against Anderson. This case involves the plaintiff’s allegations against
defendant Maher only.
6.

Conclusion

The court DENIES the plaintiff’s motion for recusal. Dkt. No. 27.
The court GRANTS the plaintiff’s request to withdraw his motion to
compel, dkt. no. 34, and ORDERS that the plaintiff’s motion to compel, dkt.
no. 28, is WITHDRAWN.
The court DENIES AS MOOT the plaintiff’s motion to strike. Dkt. No. 32.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion for
appointment of counsel. Dkt. No. 37.
The court DENIES the plaintiff’s motion for investigation. Dkt. No. 38.
Dated in Milwaukee, Wisconsin this 18th day of April, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

9