Bergeron Davila v. Kallie et al

Filing 59

ORDER signed by Judge J P Stadtmueller on 10/31/2018. 40 Plaintiff's Motion to Appoint Counsel is DENIED. 46 Plaintiff's Motion for Leave to Appeal Without Prepayment of the Filing Fee is DENIED. 42 Defendants' Motion to C ompel is GRANTED; Plaintiff to RESPOND to Defendants' specified discovery requests within 14 days or this action will be dismissed with prejudice as a sanction. See Order. (cc: all counsel, via mail to Raymond J. Bergeron Davila at Green Bay Correctional Institution and to PLRA Attorney) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,
Plaintiff,
v.
MELISSA MORAN, STEVEN CLOPE,
ANTHONY BOSE, ROBERT
MASTRONARDI, DANIEL
ECKBLAD, and JOHN DOES,

Case No. 17-CV-1756-JPS

ORDER

Defendants.
The Court will herein address various motions pending in this
matter. On September 13, 2018, Plaintiff filed a motion for appointment of
counsel. (Docket #40). He states that he desires appointed counsel to help
him review DVD footage of the biting incident that underlies this case. He
also mentions a desire for expert testimony, though he does not explain
what that testimony would entail.
As a civil litigant, Plaintiff has “neither a constitutional nor statutory
right to a court-appointed attorney.” James v. Eli, 889 F.3d 320, 326 (7th Cir.
2018). 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)). Whether

to appoint counsel in a particular case is left to the Court’s discretion. James,
889 F.3d at 326.
As to the first Pruitt element, the Court assumes without deciding
that Plaintiff made reasonable efforts to secure counsel. He describes his
efforts in detail, but the Court questions whether he sought counsel from
lawyers who actually practice in plaintiff’s-side civil rights litigation.
Simply sending a letter to any lawyer whose address may be found,
regardless of who they work for and what their practice entails, would not
satisfy the obligation to make reasonable efforts to secure counsel.
As to the second Pruitt element, neither of Plaintiff’s arguments
warrant appointment of counsel at this time. As to the footage issue,
Plaintiff was of course present during the incident and so does not need
video footage to know what happened. Further, the evidence he presents
indicates that he might be able to view the footage if it was in the proper
format. (Docket #41-1 at 1). Plaintiff does not explain what, if any, efforts he
made to obtain the footage in a useable format. Plaintiff must demonstrate
that he has put forth every effort to remedy his issues on his own before the
Court will consider appointing counsel. As to the expert issue, Plaintiff does
not describe what he wants an expert to opine upon or, as before, whether
he has made any efforts to find an expert on his own. The Court will not
appoint counsel simply to fund Plaintiff’s litigation efforts. Finally, both
issues are premature. Plaintiff relates both issues to summary judgment
submissions, but the briefing on Defendant’s summary judgment motion is
not complete. It is therefore too early to determine whether the problems
Plaintiff presents will actually matter to the Court’s decision on that motion.
Also on September 13, Defendants filed a motion to compel
discovery responses. (Docket #42). Defendants indicate that they served a
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small set of discovery requests on Plaintiff on July 18, 2018, but despite their
repeated efforts to obtain responses, he has never provided any. Plaintiff
responds that the motion should be denied for various reasons. Plaintiff
makes no attempt, however, to explain himself as to the most fundamental
aspect of Defendants’ motion: his complete failure to respond to the
requests in the manner provided by the applicable procedural rules.
Plaintiff cannot flaunt his responsibility to respond under those rules and
simply raise his objections or other concerns in response to a motion to
compel. The Court finds that Plaintiff has thus waived any objections to the
requests. Defendants’ motion to compel will be granted, and Plaintiff must
respond to Defendants’ July 18, 2018 discovery requests without objection
within fourteen (14) days. If he does not, this case will be dismissed with
prejudice as a sanction. While this may seem harsh, context is critical.
Plaintiff is an extremely experienced litigator and is intimately familiar with
the discovery process. His response to the motion is pure gamesmanship
and his conduct in discovery is an insult to the Court and Defendants.
Finally, on September 20, 2018, Plaintiff filed a motion for leave to
proceed on an appeal in forma pauperis. (Docket #46). Eight days prior, he
had filed a notice of appeal of the Court’s denial of various motions. (Docket
#33). Plaintiff may not proceed without prepayment of the filing fee on
appeal if the Court certifies in writing that the appeal is not taken in “good
faith.” 28 U.S.C. § 1915(a)(3). To determine whether Plaintiff takes the
appeal in “good faith,” the Court must determine whether “a reasonable
person could suppose that the appeal has some merit.” Walker v. O'Brien,
216 F.3d 626, 632 (7th Cir. 2000); see also Lee v. Clinton, 209 F.3d 1025, 1026
(7th Cir. 2000). An appeal is taken in “good faith” when it seeks review of
an issue that is not clearly frivolous. Lee, 209 F.3d at 1026. This is the case
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when a reasonable person could suppose the issue to have some legal merit.
Id.
In the motions for which he seeks review, Plaintiff hinted that he
would attempt an interlocutory appeal if they were denied. In denying the
motions, the Court explained to Plaintiff that none presented final,
appealable issues. (Docket #31 at 2 n.1). Thus, Plaintiff’s putative appeal
would be procedurally improper. Id. Plaintiff nevertheless chose to file the
notice of appeal. Having already warned Plaintiff that his attempted appeal
was meritless, the Court must conclude that the appeal is not taken in good
faith. Plaintiff’s motion to proceed in forma pauperis on his appeal will be
denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for appointment of counsel
(Docket #40) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to
proceed on his appeal in forma pauperis (Docket #46) be and the same is
hereby DENIED;
IT IS FURTHER ORDERED that a copy of this order be sent to
PLRA Attorney, United States Court of Appeals for the Seventh Circuit, 219
S. Dearborn Street, Rm. 2722, Chicago, Illinois 60604;
IT IS FURTHER ORDERED that Defendants’ motion to compel
(Docket #42) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that Plaintiff shall respond to
Defendants’ July 18, 2018 discovery requests within fourteen (14) days
from the date of this Order. If he does not, this action will be dismissed with
prejudice as a sanction.

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Dated at Milwaukee, Wisconsin, this 31st day of October, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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