Yancey v. City of Milwaukee et al
Filing
7
SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 10/4/2021. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; institution having custody of Plaintiff to COLLECT the balance of the filing fee as directed. Plaintiff may PROCEED on a claim of excessive force, in violation of the Fourth Amendment, against Defendant Robert Park. USMS to SERVE a copy of the Complaint and this Order on Defendant, who shall FILE a responsive pleading. See Order. (Attachments: # 1 Prisoner & Pro Se Guides) (cc: all counsel, via mail to Isaiah G Yancey and Sheriff (Order Only) at Milwaukee County Jail)(jm)
ANSWERS TO PRO SE LITIGANTS’
COMMON QUESTIONS
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN
Clerk of Court – Milwaukee Division
Clerk of Court – Green Bay Division
517 E. Wisconsin Ave., Room 362
Milwaukee, WI 53202
(414) 297-3372
125 S. Jefferson St., Room 102
Green Bay, WI 54301
(920) 884-3720
Last updated March, 2018.
Table of Contents
Introduction 3
What are the Local Rules and Federal Rules of Civil
Procedure? 4
What does that word mean? A glossary of common legal
terms. 5
How will my case proceed? 13
Filing the Complaint 13
Serving the Defendant 13
Discovery 14
Filing Dispositive Motions 14
I need information. Where can I learn more about the law? 15
Internet Resources 15
Law Libraries 15
I need help. Where can I find a lawyer or get legal advice? 17
Can the court appoint an attorney to represent me? 22
Page 2
Answers to Pro Se Litigants’ Common Questions
Introduction
For a variety of reasons, many people represent themselves in
court. A person who represents himself in court is often said to be
proceeding “pro se” (pronounced “pro say”) and may be called a
“pro se litigant” or a “self-represented litigant.”
A person who is not a lawyer can represent only himself in court.
A non-lawyer generally cannot represent another person in court,
even if that person is a close family member. A non-lawyer also
cannot represent a corporation or limited liability company (LLC)
in federal court even if the person is the owner of the company or
corporation. If a corporation or LLC is a party to a lawsuit in
federal court, the corporation or company must be represented by
an attorney.
This guide will provide you basic information about representing
yourself in a civil action in the United States District Court for the
Eastern District of Wisconsin. It is designed to address questions
that come up after a case has already been filed and before trial.
It does not directly address questions about how to file a case or
about trial. This guide provides only the most basic information.
It is not a substitute for an attorney. This information is general
in nature and some of it might not apply to your case.
This guide also lists other places you may wish to turn for more
information.
THE COURT DOES NOT ENDORSE ANY ORGANIZATION,
ENTITY, SERVICE, OR WEBSITE.
The staff of the Clerk of Court’s office will be able to answer
certain procedural questions, but they absolutely cannot give
you legal advice. Therefore, the staff of the Clerk of Court’s office
will not be able to predict whether you might win your case,
recommend a strategy of how you might win your case, predict
how a judge might decide an issue, or interpret the meaning of
any statute, rule, regulation, order, or decision.
You will be notified about all of the court’s actions in your case
through the mail. Therefore, if your mailing address changes
while this case is pending you must immediately notify the
court. Do not assume that your mail will be forwarded to you or
Answers to Pro Se Litigants’ Common Questions
Page 3
that the court knows that your address changed. It is your
responsibility to notify the court. If you fail to do so, you might
not receive important information about your case. This could
result in you losing important rights or losing your entire case.
What are the Local Rules and Federal Rules of Civil
Procedure?
The Federal Rules of Civil Procedure, often abbreviated Fed. R.
Civ. P., are rules that control every civil case filed in federal court
everywhere in the country. They can be found at a law library or
on many websites including: www.law.cornell.edu/rules/frcp and
www.uscourts.gov.
The Local Rules, often abbreviated L.R., are rules that apply to
every case filed in the Eastern District of Wisconsin. Copies of the
Local Rules can be obtained at the Clerk of Court’s office or at the
Eastern District of Wisconsin’s website, www.wied.uscourts.gov.
The Local Rules are divided into three sections: (1) General Rules
that apply to all cases; (2) Civil Rules that apply in only civil
cases; and (3) Criminal Rules that apply in only criminal cases.
Like everyone else, pro se litigants MUST comply with these rules.
Failure to comply with these rules may have serious
consequences. Depending upon the circumstances, it is possible
that you might lose your case if you do not comply with all
the rules.
Page 4
Answers to Pro Se Litigants’ Common Questions
What does that word mean? A glossary of common legal
terms.
Courts and lawyers often use terms that have special meanings
when used in the legal setting. Simple definitions of some of the
most common terms are below. Additional information can be
found
at
various
websites
such
as
http://www.uscourts.gov/glossary or by consulting a legal
dictionary.
Affidavit:
A written or printed statement made
under oath.
Amount
in controversy:
The amount of money at issue in a
case.
Answer:
The document that a defendant files in
response to a plaintiff’s complaint. See
Fed. R. Civ. P. 7, 8, 9, 10, 11, 12.
Brief:
A written statement submitted to a
court that explains a party’s factual
and legal arguments in support of a
motion.
Civil case:
A legal action where a plaintiff seeks
some sort of relief from a defendant.
Civil cover sheet:
A form submitted by the plaintiff along
with a complaint. It asks for basic
information about a case and is used
for keeping track of what types of
cases are filed in federal court.
Costs:
Money a court may award to a party
who wins a lawsuit for expenses
incurred by the winning party during
the lawsuit for things such as filing
fees, service of a summons or
subpoena,
court
reporters,
or
witnesses. See Fed. R. Civ. P. 54(d); 28
U.S.C. § 1920.
Answers to Pro Se Litigants’ Common Questions
Page 5
Complaint:
A written statement filed by the
plaintiff to begin a lawsuit. In this
document, the plaintiff outlines his
case and states what he would like to
happen. See Fed. R. Civ. P. 7, 8, 9, 10,
11, 12.
Consent/Refusal to
Proceed Before U.S.
Magistrate Judge
A form on which a party states
whether he or she authorizes a United
States Magistrate Judge to be the
judge in the case. If all parties
consent, the magistrate judge will
handle all aspects of the case,
including a jury trial, if necessary.
If even one party does not consent to
have a magistrate judge handle the
case, the case will be handled by a
district judge.
Damages:
Money that a defendant pays a
plaintiff in a civil case if the plaintiff
has
won.
Damages
may
be
compensatory (to compensate for a
loss or injury) or punitive (to punish or
deter future misconduct).
Default judgment:
Judgment entered in favor of the
plaintiff and against a defendant when
the defendant fails to answer or
respond to a complaint. See Fed. R.
Civ. P. 55.
Defendant:
In a civil case, this is the party being
sued by the plaintiff.
Page 6
Answers to Pro Se Litigants’ Common Questions
Deposition:
A part of discovery where a witness or
party answers questions under oath.
Generally, this happens in-person,
and although similar to testifying in
court, this generally takes place in a
lawyer’s office. See Fed. R. Civ. P. 27,
28, 30, 31, 32.
Discovery:
The phase of a civil case where each
party collects information about the
case from the other side. It may also
refer to the actual information
collected during this process, which
may include copies of documents,
written answers to questions, or
depositions. See Fed. R. Civ. P. 26, 27,
28, 29, 30, 31, 32, 33, 34, 35, 36, 37.
A motion that, if granted, would end a
portion of a case or end an entire case.
Examples include a motion to dismiss
or a motion for summary judgment.
Dispositive motion:
District court:
The court in the federal system where
most actions start. The District Court
for the Eastern District of Wisconsin is
a district court.
District judge:
A federal judge appointed to serve for
life by the President and confirmed by
the Senate to serve in a district court
under Article III of the Constitution.
Docket:
A brief written chronological list of
what has happened in a case that is
maintained by the Clerk of Court.
Answers to Pro Se Litigants’ Common Questions
Page 7
Electronic Court Filing
(ECF):
A way for attorneys to file documents
with the court by uploading them to a
website. In the Eastern District of
Wisconsin, pro se litigants cannot file
documents this way. Pro se litigants
must file documents by submitting
them to the Clerk of Court. The Clerk’s
office staff will then upload the
documents to the ECF system.
Evidence:
Information presented in testimony or
documents that is used to persuade a
judge or jury to decide a case a certain
way.
Federal Rules of Civil
Procedure:
The rules for conducting a civil lawsuit
filed in a federal court. Often
abbreviated Fed. R. Civ. P.
Federal Rules of
Evidence:
Rules that govern what types and how
evidence may be presented in federal
court. Often abbreviated Fed. R. Evid.
Hearsay:
Evidence where a witness recounts
what he learned from someone else.
Hearsay is generally not admissible in
court. See Fed. R. Evid. 801, 802, 803,
804, 806,805, 807.
In Forma Pauperis (IFP):
Latin phrase meaning “as a poor
person.” It is used when a party
cannot afford to pay the filing fee to
start a civil suit and therefore asks the
court for permission to proceed “as a
poor person” and not require him to
pay the fee. A person wishing to
proceed in forma pauperis must
complete this district’s “Request to
Proceed without Prepaying the Filing
Fee,” which is available on the court’s
website or from the Clerk of Court’s
office. See 28 U.S.C. § 1915.
Page 8
Answers to Pro Se Litigants’ Common Questions
Interrogatory:
One party’s written question to
another party that is asked as part of
discovery. See Fed. R. Civ. P. 33; Civ.
L.R. 33.
Judgment:
The final action by the court that ends
a case in a district court.
Jurisdiction:
The legal authority of a court to hear
and decide a certain type of case. It
also is used as a synonym for venue,
meaning the geographic area over
which the court has territorial
jurisdiction to decide cases.
Litigant:
A party to a lawsuit.
Local Rules:
Rules that apply to cases brought in a
specific court. Often abbreviated L.R.
Magistrate judge:
A federal judge appointed by the
judges in a district court who may
oversee all aspects of a civil case if the
parties consent.
Mediation:
A process where the parties meet with
a neutral third party (sometimes a
magistrate judge) in an effort to reach
a mutually agreeable settlement of the
case.
Motion:
A request by a litigant to a judge for a
decision on an issue relating to the
case. See Fed. R. Civ. P. 7(b); Civ. L.R.
7.
Movant:
The party that files a motion.
Order:
The court’s command to a party,
decision on a motion, or resolution of
an issue in the case.
Answers to Pro Se Litigants’ Common Questions
Page 9
Party:
The plaintiff or the defendant in a
lawsuit.
Plaintiff:
The party that starts a civil lawsuit by
filing a complaint.
Pleadings:
Written statements filed with the court
that describe a party’s legal or factual
assertions about the case. Pleadings
may include a complaint, an answer, a
motion, or a brief.
Prejudice:
Motions or cases can be resolved with
or
without
prejudice.
If
“with
prejudice,” the case or motion cannot
be filed again. If “without prejudice,”
the case or motion might be able to be
re-filed at a later time.
Pro bono:
Phrase commonly used to refer to
when a lawyer represents a person for
free.
Relief:
What a party seeks either in a lawsuit
or in a particular motion.
Reply:
A movant’s submission following the
other party’s response to a motion.
When a motion is filed, the movant
may submit a brief in support. The
other party will be able to submit a
response. The movant will then be
able to reply. The court will then
decide the motion. See Civ. L.R. 7, 56.
Page 10
Answers to Pro Se Litigants’ Common Questions
Response:
A submission made by a party in
opposition to a motion. When a motion
is filed, the movant may submit a brief
in support. The other party will be
able to submit a response. The movant
will then be able to reply. The court
will then decide the motion. See Civ.
L.R. 7, 56.
Scheduling conference:
A meeting with the court involving any
pro
se
litigant
and
attorney
representing a party to discuss how
the case will proceed. The court
decides whether any conference will be
held in person or by telephone. See
Fed. R. Civ. P. 16; Civ. L.R. 16.
Service of process:
The act of formally providing the
defendant with a copy of a summons
and a copy of the complaint to inform
him of the lawsuit against him. See
Fed. R. Civ. P. 4.
Settlement:
Parties to a lawsuit resolve their
dispute without having a trial.
Settlements often involve the payment
of compensation by one party in at
least partial satisfaction of the other
party's claims, but usually do not
include the admission of fault.
Statute of limitations:
The time within which a lawsuit must
be filed or a criminal prosecution
begun. The deadline can vary,
depending on the type of case.
Subpoena:
A command, issued under a court's
authority, to a witness to appear and
give testimony or to produce certain
documents.
Answers to Pro Se Litigants’ Common Questions
Page 11
Summons:
A form prepared by the plaintiff and
issued by a court that informs the
defendant that he or she has been
sued. See Fed. R. Civ. P. 4.
Summary judgment:
A decision made on the basis of
statements and evidence presented for
the record without a trial. It is used
when it is not necessary to resolve any
factual disputes in the case. Summary
judgment is granted when – on the
undisputed facts in the record – one
party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56;
Civ. L.R. 56.
Text Only Order:
An order entered by a judge that
appears only on the docket and is not
accompanied by a longer formal
written order. These orders are
generally short and for minor matters.
Waiver of service:
A process where a defendant may
agree that a plaintiff will not have to
formally serve him with a summons
and a copy of the complaint. See Fed.
R. Civ. P. 5(d).
Page 12
Answers to Pro Se Litigants’ Common Questions
How will my case proceed?
Filing the Complaint
When a complaint is submitted to the Clerk of Court’s office, you
must either pay a $400.00 filing fee or petition the court to
proceed in forma pauperis.
You also must promptly submit the “Consent/Refusal to Proceed
Before U.S. Magistrate Judge” form. This form will be provided to
you when you file your case. The form is also available on the
Eastern District of Wisconsin’s website. The court might not take
any action on your case until you submit this form.
If you cannot afford the filing fee and therefore wish to petition to
proceed in forma pauperis, you must the form included in the
Court’s “Guide and Complaint for Non-Prisoner Filing Without a
Lawyer ” This form is available at the Clerk of Court’s office or at
the court’s website. After you submit this completed form, the
court will review the information you provide to determine if you
can pay the filing fee. If the court determines you can pay the
filing fee, the court will order you to do so.
If the court determines you cannot afford the filing fee, the court
will review your complaint to determine if it is sufficient to
proceed. If the court finds your complaint is sufficient, your case
will go forward.
Serving the Defendant
The next step is providing each defendant with a copy of the
complaint and either a summons or both a Request to Waive
Service of Summons and a Waiver of Service of Summons form.
This process is called “serving the defendant.” If you paid the
filing fee, the Clerk of Court will provide you with instructions on
how to serve the defendant. If you were granted permission to
proceed in forma pauperis, in most cases the United States
Marshals Service must serve defendant. Even if you were granted
permission to proceed in forma pauperis, you will be charged a
fee to have the United States Marshals Service serve the
defendant. The current fee for the United States Marshals Service
to provide a defendant with a waiver-of-service packet is $8.00. If
personal service is required, the current fee is $65.00 per hour,
Answers to Pro Se Litigants’ Common Questions
Page 13
plus travel costs and any other out-of-pocket expenses for each
Deputy Marshal needed for service. See 28 C.F.R. § 0.114 for
more information on the fees the United States Marshals Service
will charge.
If you are appealing a denial of Social Security benefits, the Clerk
of Court will serve the defendant for you.
After the defendant is served with a summons and a copy of the
complaint, the defendant generally must file an answer to the
complaint. If you are appealing a denial of Social Security
benefits, your case will proceed differently; after the defendant is
served the Clerk of Court will mail you a letter explaining how
your case will proceed.
Discovery
Once the defendant answers the complaint, the court will usually
schedule a conference with the parties. The judge may decide to
have this conference over the phone or in court. During this
conference, the court will discuss scheduling of further
proceedings in your case. The court will set a deadline for the
parties to make their initial disclosures, as required by Fed. R.
Civ. P. 26(a). The court will usually also set deadlines for the
parties to complete all discovery and for filing dispositive motions.
During the discovery phase of the case, the parties exchange
information about the case. This may include exchanging
documents, presenting interrogatories, or conducting depositions.
The discovery phase may last a number of months.
At any point in the case, the parties may try to negotiate a
settlement of the case. The parties may try to do this on their own
or may ask an unbiased third party, sometimes a magistrate
judge, to help them settle the case through mediation.
Filing Dispositive Motions
The court will usually set a deadline for any party to file a motion
for summary judgment. There are very specific rules about how to
file and respond to a motion for summary judgment. In a motion
for summary judgment, a party claims that the undisputed facts
demonstrate that he must win the case. The other party must
Page 14
Answers to Pro Se Litigants’ Common Questions
respond, and the movant may reply. The court will then decide
the motion. The court’s resolution of the motion might end the
case. If the court’s decision does not end the case, the court will
schedule the matter for trial. It normally takes at least a year
from the time a case is filed until a trial is held; in many cases,
the time is longer.
I need information. Where can I learn more about the law?
Internet Resources
Wisconsin State Law Library: http://wilawlibrary.gov/.
Under “Legal Topics”
• Links to hundreds of resources organized by topic.
• Links to legal forms.
• Links to other organizations, organized by county.
• Links to case law, statutes, and rules.
Law Libraries
Marquette University Law School Library
1215 W. Michigan St., Milwaukee, Wisconsin 53233, 414288-7031.
A law library with access to full range of legal materials.
Library is open to members of the public for the purpose
of conducting legal research. However members of the
public are not able to check out materials. Staff is
available to assist patrons with research needs. Public
patrons must register at the lobby desk upon entering
Eckstein Hall by signing in and showing photo
identification.
Eastern District of Wisconsin Law Library
517 E. Wisconsin Ave., Room 516, Milwaukee, WI 53202,
414-297-1698.
The library is open, as a courtesy, to members of the bar,
government employees and the general public on
weekdays between 8:30 a.m. and 5:00 p.m. The library
will be closed on all federal holidays and other days when
the federal courthouse is closed. On occasion the library
Answers to Pro Se Litigants’ Common Questions
Page 15
may be closed when staff attend work-related events
elsewhere.
Non-court users are asked to sign in at the front desk and
may use materials only in the library. Photocopiers are
available. Some older materials are kept in store rooms. If
you do not see a volume you need on the shelf, check with
the library staff who will retrieve materials from the store
room. Materials which are checked out to chambers will
not be retrieved for use by non- court users. The
computers in the library are for use by court staff only.
Milwaukee Legal Resource Center (MLRC)
901 N. 9th St., Courthouse, Room G10-1, Milwaukee, WI
53233, 414-278-4900.
A branch of the State Law Library, the Milwaukee Legal
Resource Center (MLRC) is the law library for Milwaukee
County. Library staff is available to provide reference and
research assistance, including locating procedural
information, forms, and other types of legal resources. The
library's collection contains Wisconsin primary legal
materials, as well as State Bar of Wisconsin CLE practice
books and other secondary legal materials. The library
also has federal materials, such as U.S. Supreme Court
Reporter, Code of Federal Regulations, and the United
States Code Service, a core collection of treatises,
Milwaukee County and Milwaukee City ordinances,
general reference books, and some titles aimed at the nonlawyer. The library offers several public computers with
free access to the Internet, Westlaw, Shepard's Public
Access, the Wisconsin State Law Library catalog (including
MLRC titles), and the LOIS Wisconsin Series CD-ROM.
County law libraries:
Many county courthouses maintain small un-staffed
public law libraries. Contact a specific county courthouse
for current information.
Page 16
Answers to Pro Se Litigants’ Common Questions
I need help. Where can I find a lawyer or get legal advice?
State Bar of Wisconsin Lawyer Referral and Information
Service (LRIS)
(800) 362-9082 or (608) 257-4666 (in Dane County and
outside of Wisconsin). Available Monday through Friday
from 8:00 AM to 5:00 PM.
Online service is available 24 hours per day through the
State Bar of Wisconsin’s website, http://www.wisbar.org/
forPublic/INeedaLawyer/Pages/Lawyer-Referral-Request.aspx.
You can search for an attorney by geographical location
and area of practice.
When you call the service, you will not get legal advice.
However, you will talk to a legal assistant who is
experienced in analyzing potential legal problems – and in
helping you locate the best source of help.
After speaking with an LRIS legal assistant, you may
decide that you need to hire an attorney. If so, we can
refer you to an attorney in your area who has indicated an
interest in your type of legal situation. Attorneys referred
through LRIS agree to charge no more than $20 for the
first consultation, up to one half hour.
In some cases, you will resolve your legal issue at the first
meeting. If your problem requires work beyond the first
half-hour, you will be charged the lawyer’s regular fees.
Attorneys participating in LRIS may accept referrals in any
field of law in which they consider themselves competent.
LRIS does not warrant that panel attorneys have any
special expertise in the area of law for which a client was
referred.
Answers to Pro Se Litigants’ Common Questions
Page 17
Legal Action of Wisconsin
www.legalaction.org
Milwaukee: 230 W. Wells St., Milwaukee, WI 53203, 414278-7722.
Racine: 4900 Spring St., Ste. 100, Racine, WI 53406, 262635-8836.
Oshkosh: 404 N. Main St., Ste. 702, Oshkosh, WI 54901,
920-233-6521.
Green Bay: 201 W. Walnut St., Ste. 203, Green Bay, WI
54303, 920-432-4645.
Legal Action of Wisconsin provides free legal services to
low-income individuals. However, Legal Action focuses
upon only a few areas of law. For example, Legal
Action generally does not represent litigants in
employment discrimination cases. Areas of law that
Legal Action handles that are most likely to come up in
federal court include:
Consumer Law - Mortgage foreclosures, utility shut-offs
and restoration of utility services, predatory lending such
as payday and car title loans, and some bankruptcies.
Government/Public Benefits (Welfare) and Health Law Wisconsin Works (W-2), Child Care Assistance,
BadgerCare, Food Stamps, Title 19 or Medicaid, Kinship
Care,
Unemployment
Compensation
and
other
government benefit programs.
SeniorLAW - SSI, Social Security, Medicare, Medicaid. .
Social Security – Appeals of Social Security Disability
(SSD-I) and Social Security (SSI) denials when private
attorneys cannot be found.
Page 18
Answers to Pro Se Litigants’ Common Questions
Legal Aid Society of Milwaukee
www.lasmilwaukee.com
728 N. James Lovell Street, Third Floor, North Suite, 414727-5300.
The Legal Aid Society of represents low income families
and individuals who have problems involving housing,
government benefits, disability, foreclosure, employment,
homelessness, consumer law, eviction, HIV/AIDS, and
civil rights. The Civil Division conducts regular walk-in
hours on Mondays and Wednesdays from 1:30 p.m. to
3:30 p.m.
State Bar of Wisconsin Modest Means Program
Information and application form available online:
www.wisbar.org/forPublic/INeedaLawyer/Pages/ModestMeans.aspx
The Modest Means Program of the State Bar of Wisconsin
is designed to assist people whose income is too high to
qualify for free legal services, but too low to pay a lawyer's
standard rate. The program has income qualifications
based on family size.
Only certain types of cases are eligible under this
program. Generally, any case that may result in you
suing for a monetary award or damages is not eligible
for a reduced fee referral (personal injury, medical
malpractice, etc.). Cases that qualify for this program
that are most likely to come up in federal court include
insurance policy disputes, contracts, and consumer fraud.
Marquette Volunteer Legal Clinic (MVLC)
www.marquettelegalclinic.org
At the Marquette Volunteer Legal Clinic, volunteer
attorneys and Marquette University law students serve the
Milwaukee community at various locations by providing
pro bono legal information and referral services on a walkin basis to individuals in need of legal assistance. Legal
information is provided in most areas of civil law.
Answers to Pro Se Litigants’ Common Questions
Page 19
The MVLC does not provide legal advice regarding
employment discrimination issues.
No attorney-client relationship is formed and on-going
representation is not provided. No appointment is
necessary. You should bring all paperwork related to your
question.
MVLC locations:
House of Peace Community Center
1702 W. Walnut St.,
Milwaukee, WI
Tuesdays:
4:00 p.m. to 6:00 p.m.
(sign-in starts at 3:30 p.m.)
Milwaukee Justice Center
Milwaukee County Courthouse,
Room G9 - 901 N. 9th Street
Milwaukee County residents
only.
Thursdays (sign-in starts at 1:30
p.m.):
Fridays (sign-in starts at 8:30 a.m.)
Marquette Volunteer Legal Clinic
for Veterans
This clinic serves only veterans,
active duty service members, and
their families.
6419 W. Greenfield Ave.,
West Allis, WI
1st and 3rd Mondays:
4:00 p.m. to 6:00 p.m.
United Community Center
Services available in English and
Spanish.
730 W. Washington St.,
Milwaukee, WI
Wednesdays:
5:00 p.m. to 7:00 p.m.
(sign-in starts at 4:30 p.m.)
Community Advocates
http://communityadvocates.net/advocacy/
Community Advocates can provide referrals for legal
representation in Social Security Disability and
Supplemental Security Income (SSI) appeals.
Call 414-449-4777.
Page 20
Answers to Pro Se Litigants’ Common Questions
Eastern District of Wisconsin Bar Association (EDWBA) Pro Se
Federal Civil Litigant Help Line
Information and application available at edwba.org.
The EDWBA Help Line offers free, confidential,
independent guidance (up to two hours) from a volunteer
lawyer who will provide you information about federal civil
litigation. Although these volunteer lawyers cannot
represent you, they can help you represent yourself.
Topics include:
o
o
o
o
o
Filing a civil case
Writing litigation documents
Understanding deadlines, court procedures, and
rules
Understanding statutes and case law
Making and responding to discovery requests
Answers to Pro Se Litigants’ Common Questions
Page 21
Can the court appoint an attorney to represent me?
Unlike a criminal case, there is no right to counsel in a civil case.
However, under certain circumstances, the court may attempt to
find an attorney who is willing to volunteer his or her time to
represent a person in federal court. Because the court lacks the
funds to pay attorneys who agree to represent poor litigants in
civil cases, these attorneys do so without being paid (referred to
as “pro bono”).
Before the court will consider trying to find an attorney to
volunteer to represent a litigant in a civil action, the litigant must
attempt to find an attorney on his or her own.
If after making appropriate efforts to find an attorney a party is
unable to find an attorney, the party may file a motion asking the
court to recruit an attorney. In this motion, the party must
explain why he or she is unable to afford counsel. The party must
also provide details about his or her efforts to find counsel.
The court will review the motion. If the court finds that the person
lacks the resources to hire an attorney and has made appropriate
efforts to obtain counsel on his or her own, the court will consider
various factors to decide whether or not to try to find a volunteer
attorney.
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Answers to Pro Se Litigants’ Common Questions
ANSWERS TO PRISONER LITIGANTS’
COMMON QUESTIONS
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN
Clerk of Court – Milwaukee Division
Clerk of Court – Green Bay Division
517 E. Wisconsin Ave., Room 362
Milwaukee, WI 53202
(414) 297-3372
125 S. Jefferson St., Room 102
Green Bay, WI 54301
(920) 884-3720
Last updated May 2020.
Table of Contents
Introduction ........................................................................................................ 3
What are the Local Rules and the Federal Rules of Civil Procedure?........ 3
What does that word mean? A glossary of common legal terms. .............. 4
How your case will proceed. ..........................................................................12
Responding to a motion to dismiss ................................................................12
Amending your complaint ..............................................................................13
Motions to appoint counsel .............................................................................14
Discovery ...........................................................................................................15
Motions to compel ............................................................................................17
Responding to a motion for summary judgment ........................................17
Mediation ...........................................................................................................19
Motions for reconsideration ............................................................................19
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Answers to Prisoner Litigants’ Common Questions
Introduction
This guide provides basic information for pro se prisoners (that is,
prisoners representing themselves) who have filed a civil case in the
United States District Court for the Eastern District of Wisconsin. This
information is general and some of it might not apply to your case.
The Clerk of Court’s office will be able to answer some procedural
questions, but they cannot give you legal advice. For example, the Clerk
of Court’s office will not predict whether you might win your case,
recommend a legal strategy, predict how a judge might decide an issue,
or interpret the meaning of any statute, rule, regulation, order, or
decision.
The court will communicate with you through the mail. Therefore, if
your mailing address changes while this case is pending, you must
immediately notify the court. Institutions rarely forward an inmate’s
mail, and they do not notify the court when an inmate is released or
transferred. It is your responsibility to notify the court if your address
changes. If you don’t, you might not receive important information
about your case. This could result in you losing important rights or
losing your entire case.
What are the Federal Rules of Civil Procedure and the Local Rules?
The Federal Rules of Civil Procedure, often abbreviated Fed. R. Civ. P.,
are rules that control every civil case filed in federal court everywhere in
the country. The Local Rules, often abbreviated L.R., are rules that
control every case filed in the Eastern District of Wisconsin.
Like everyone else, pro se litigants MUST comply with these rules.
Failure to comply with these rules may have serious consequences. It is
possible that you could lose your case if you do not comply with all the
rules.
You may be able to find these rules at your institution’s law library. Also,
the court will often include the text of a relevant rule in its orders. If you
Answers to Prisoner Litigants’ Common Questions
Page 3
need the text of a rule and you can’t find it elsewhere, you may write to
the court and request the text of a particular rule.
What does that word mean? A glossary of common legal terms.
Courts and lawyers often use terms that have special meanings when
used in the legal setting. Simple definitions of some of the most common
terms are below.
Affidavit:
A written statement made under oath. The
person who signs the statement swears that
everything in the statement is true.
Amount in
Controversy:
The amount of money at issue in a case.
Answer:
The document that a defendant files in
response to a plaintiff’s complaint. See Fed. R.
Civ. P. 7, 8, 9, 10, 11, 12.
Brief:
A written statement submitted to a court that
explains a party’s factual and legal arguments
in support of or in response to a motion.
Civil Case:
A legal action where a plaintiff seeks some sort
of relief from a defendant.
Costs:
Money a court may award to a party who wins
a lawsuit for expenses the winning party had
to pay during the lawsuit for things such as
filing fees, service of a summons or subpoena,
court reporters, or witnesses. See Fed. R. Civ. P.
54(d); 28 U.S.C. § 1920.
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Answers to Prisoner Litigants’ Common Questions
Complaint:
A written statement filed by a plaintiff to begin
a lawsuit. In this document, a plaintiff outlines
his case and states what he would like to
happen. See Fed. R. Civ. P. 7, 8, 9, 10, 11, 12.
Consent/Refusal to
Proceed Before U.S.
Magistrate Judge:
A form on which a party states whether he or
she authorizes a United States Magistrate
Judge to be the judge in the case. If all parties
consent, the magistrate judge will handle all
aspects of the case, including a jury trial, if
necessary.
If even one party does not consent to have a
magistrate judge handle the case, the case will
be handled by a district judge, although the
district judge may refer the case to a magistrate
judge to handle pretrial matters.
Damages:
Money that a defendant pays a plaintiff in a
civil case if the plaintiff wins. Damages may be
compensatory (to compensate for a loss or
injury) or punitive (to punish or deter future
misconduct).
Default Judgment:
Judgment entered in favor of a plaintiff and
against a defendant when a defendant doesn’t
answer or respond to a complaint. See Fed. R.
Civ. P. 55.
Defendant:
In a civil case, this is the party being sued by
the plaintiff.
Deposition:
A part of discovery where a witness or party
answers questions under oath. Generally, this
happens in person. A prisoner is nearly always
deposed at his or her institution. See Fed. R. Civ.
P. 27, 28, 30, 31, 32.
Answers to Prisoner Litigants’ Common Questions
Page 5
Discovery:
The phase of a civil case where each party
collects information from the other side. It may
also refer to the actual information collected
during this process, which may include copies
of documents, written answers to questions, or
depositions. See Fed. R. Civ. P. 26, 27, 28, 29, 30,
31, 32, 33, 34, 35, 36, 37.
Dispositive Motion:
A motion that, if granted, would end a portion
of a case or an entire case. Examples include a
motion to dismiss or a motion for summary
judgment.
District Court:
The court in the federal system where most
cases start. The District Court for the Eastern
District of Wisconsin is a district court.
District Judge:
A federal judge appointed to serve for life by
the President of the United States and
confirmed by the Senate to serve in a district
court under Article III of the Constitution.
Docket:
A chronological summary of what has
happened in a case that is maintained by the
Clerk of Court.
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Answers to Prisoner Litigants’ Common Questions
Electronic Court Filing
(ECF):
A way for attorneys to file documents with the
court by uploading them to a website. In the
Eastern District of Wisconsin, pro se litigants
cannot file documents this way. Pro se litigants
must file documents by submitting them to the
Clerk of Court. The Clerk’s office staff then
uploads the documents to the ECF system.
Inmates at certain institutions may be able to
file documents by giving them to institutional
staff. The institution then electronically
submits the documents to the Clerk of Court.
Check with your institution’s law librarian to
see if your institution participates in this
program.
Evidence:
Information presented in testimony or
documents that is used to support your
arguments.
Federal Rules of Civil
Procedure:
The rules that control a civil case filed in
federal court. Often abbreviated Fed. R. Civ. P.
Federal Rules of
Evidence:
Rules that control what you can use as
evidence and how you can present your
evidence in federal court. Often abbreviated
Fed. R. Evid.
Hearsay:
Statements that someone else made or told to
the person presenting the statement to the
court; secondhand information. Hearsay is
generally not admissible in court. See Fed. R.
Evid. 801, 802, 803, 804, 806, 805, 807.
Answers to Prisoner Litigants’ Common Questions
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In Forma Pauperis
(IFP):
Latin phrase meaning “as a poor person.” It is
used when a party cannot afford to pay the
filing fee to start a case and therefore asks the
court for permission to proceed “as a poor
person” and not require him to prepay the
filing fee. Prisoners will be required to pay the
full filing fee even if granted permission to
proceed in forma pauperis but will be allowed
to pay the filing fee over time through
deductions from their prison trust account.
Initial Partial Filing
Fee:
The portion of the $350.00 filing fee that a
prisoner who has been granted permission to
proceed in forma pauperis must pay to begin
his or her case. See 28 U.S.C. § 1915(b).
Interrogatory:
One party’s written question to another party
that is asked as part of discovery. See Fed. R.
Civ. P. 33; Civ. L.R. 33.
Judgment:
The final action by the court that ends a case in
a district court.
Jurisdiction:
The legal authority of a court to hear and
decide a certain type of case. It also is used as a
synonym for venue, meaning the geographic
area over which the court has territorial
authority to decide cases.
Litigant:
A party to a lawsuit.
Local Rules:
Rules that apply to cases brought in a specific
court. Often abbreviated L.R.
Magistrate Judge:
A federal judge appointed by the judges in a
district court who may oversee all aspects of a
civil case, if the parties consent.
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Answers to Prisoner Litigants’ Common Questions
Mediation:
A process where the parties meet with a
neutral third party (often a magistrate judge) to
try to settle the case.
Motion:
A request to a judge for a decision on an issue
relating to the case. See Fed. R. Civ. P. 7(b); Civ.
L.R. 7.
Movant:
The party that files a motion.
Order:
The court’s command to a party, decision on a
motion, or resolution of an issue in the case.
Party:
The plaintiff or the defendant in a lawsuit.
Plaintiff:
The party that starts a civil case by filing a
complaint.
Pleadings:
Written statements filed with the
describe a party’s legal or factual
about the case. Pleadings may
complaint, an answer, a motion, or
Fed. R. Civ. P. 7, 8, 9, 10, 11, 15.
Prejudice:
Motions or cases can be decided with or
without prejudice. If “with prejudice,” the case
or motion cannot be filed again. If “without
prejudice,” the case or motion might be able to
be refiled, if circumstances have changed.
Pro Bono Attorney:
An attorney who represents a person without
cost to the plaintiff.
Relief:
What a party wants if it wins a lawsuit or a
motion.
Answers to Prisoner Litigants’ Common Questions
court that
statements
include a
a brief. See
Page 9
Reply:
What a party files after the other party
responds to a motion. A party generally files a
brief in support of its motion. The other party
then files a response to the motion. The party
who filed the motion can then file a reply. The
court will then decide the motion. Replies are
optional. See Civ. L.R. 7, 56.
Response:
What a party files in response to a motion. A
party generally files a brief in support of its
motion. The other party then files a response to
the motion. The party who filed the motion can
then file a reply. The court will then decide the
motion. See Civ. L.R. 7, 56.
Service of Process:
When the defendant is given a copy of a
summons and a copy of the complaint to
inform the defendant that he or she has been
sued. See Fed. R. Civ. P. 4.
Settlement:
When parties agree to resolve the case without
having a trial. Often, the defendants will agree
to pay the plaintiff money or give the plaintiff
something he or she wants in exchange for the
plaintiff agreeing to dismiss the case.
Status Conference:
A meeting with the court and the parties to
discuss issues in the case. The parties generally
participate by telephone.
Statute of Limitations:
The deadline by which a plaintiff must file his
complaint. Generally, in § 1983 cases, the
statute of limitations is three years.
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Answers to Prisoner Litigants’ Common Questions
Strike:
A consequence of a prisoner’s case or appeal
being dismissed because the case or appeal is
frivolous, malicious, or fails to state a claim
upon which relief may be granted. If a prisoner
gets three or more strikes, in future cases he
can’t proceed in forma pauperis unless he is
under immediate danger of serious physical
injury. Instead, he will have to pay the full
filing fee before he will be allowed to proceed
with his case. See 28 U.S.C. §1915(g).
Summary Judgment:
A decision entered by the court for one party
and against another party without a trial. The
court will grant a party’s motion for summary
judgment when there are no material
disagreements about the facts and the moving
party wins based on the law. See Fed. R. Civ. P.
56; Civ. L.R. 56.
Text Only Order:
An order entered by a judge that appears only
on the docket. There is no separate written
order. These orders are generally short and for
minor matters, such as extending deadlines.
Answers to Prisoner Litigants’ Common Questions
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How your case will proceed
Now that the court has identified the claims with which you may
proceed, the named defendants will be served with your complaint and
given time to respond. If the defendants work for the State of Wisconsin
or Milwaukee County, they will be served under an agreement with the
court that requires them to respond to your complaint within sixty days
after entry of the court’s screening order.
If one or more of the defendants do not work for the State or Milwaukee
County, the court will direct the U.S. Marshals Service to serve them
with your complaint. Once the defendants are served, their deadline to
respond to your complaint is set by Federal Rule of Civil Procedure 12.
Because the U.S. Marshals Service is very busy, it may take several
months for the Marshals to serve the defendants with your complaint.
The court asks you to be patient during this time.
After the defendants are served with your complaint, they will file either
an answer to your complaint or a motion to dismiss under Federal Rule
of Civil Procedure 12. It is unnecessary to respond to the answer. After
the defendants file an answer, the court will enter a scheduling order.
The scheduling order sets deadlines for completing discovery and for
filing motions for summary judgment. The scheduling order also
provides you with information about how to communicate with the
court and defense counsel and with copies of several important
procedural rules. You may not start discovery until after the court enters
a scheduling order.
After discovery is completed, the defendants will often file a motion for
summary judgment. If your claims survive summary judgment, your
case will proceed to trial.
Responding to a motion to dismiss
Instead of answering your complaint, sometimes the defendants will file
a motion to dismiss. Federal Rule of Civil Procedure 12(b) lists different
defenses defendants may raise in response to a complaint. The most
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Answers to Prisoner Litigants’ Common Questions
common defense is that the allegations in the complaint fail to state a
claim upon which relief may be granted.
If the defendants file a motion to dismiss, you must respond to the
motion within twenty-one days after being served with the motion. If
you need more than twenty-one days to respond, you may ask the court
to give you more time. It is up to the court to decide how much extra
time (if any) to give you, so ask the court right away if you think you will
need extra time. If you do not respond to a motion to dismiss, the court
may conclude that you do not oppose the motion and that you no longer
wish to continue with your case. Under Civil Local Rule 7(d), failure to
respond to a motion is enough of a reason for the court to grant the
motion.
Amending your complaint
If you want to proceed on claims or against defendants that you did not
include in your original complaint, you must file an amended complaint.
Federal Rule of Civil Procedure 15 and Civil Local Rule 15 explain the
requirements for filing amended complaints. Generally, you may amend
your complaint one time without the court’s permission before the court
screens your complaint or within twenty-one days after the defendants
respond to your complaint. If you already amended your complaint, or if
it has been more than twenty-one days since the defendants responded
to your complaint, you must file a motion asking the court for
permission to amend your complaint (see Civil L. R. 15). In your motion,
you must explain the differences between the current complaint and
your proposed amended complaint. You must attach the proposed
amended complaint to your motion. Your proposed amended complaint
must be on the court’s complaint form, which you can get at your
institution.
An amended complaint takes the place of prior complaints, so it must be
complete by itself. That means your amended complaint must include all
of your allegations against all of the defendants you want to sue. You
cannot simply refer to your prior complaint or rely on other filings; all of
your allegations must be in a single document.
Answers to Prisoner Litigants’ Common Questions
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Your amended complaint does not have to be overly detailed or cite to
cases. It simply needs to give the defendants notice of what you think
they did or did not do to violate your constitutional rights.
As with your original complaint, the court will screen your amended
complaint to identify the claims with which you may proceed. The
defendants will have an opportunity to respond to your amended
complaint.
Motions to appoint counsel
In a criminal case, every defendant who cannot afford a lawyer has a
right to have a lawyer appointed to represent him or her. But this is a
civil case. Although plaintiffs in civil cases do not have a right to have a
lawyer appointed to represent them, the court can try to recruit a lawyer
to represent you on a volunteer basis. Before the court will consider
whether to recruit a lawyer for you, you must first try to find a lawyer to
represent you. If you ask the court to recruit a lawyer for you, you must
include proof that you contacted at least three lawyers and asked them
to represent you. Proof could include the names of the lawyers and the
dates that you contacted them, copies of the letters you sent asking the
lawyers to represent you, or copies of the lawyers’ responses to you.
There are not enough lawyers willing and able to represent all of the
prisoner plaintiffs who ask for free representation. As a result, the court
cannot recruit a lawyer for every plaintiff who asks for one. When
deciding whether to recruit a lawyer to represent you, the court will
consider the complexity of the issues in your case and whether you are
able to handle the tasks required to litigate your case, including whether
you have the ability to participate in discovery and respond to a motion
for summary judgment.
Keep in mind that nearly all prisoner plaintiffs have limited education
and no legal education and that many prisoner plaintiffs suffer from
mental health conditions. So even though those facts are relevant to the
court’s decision, they are not enough on their own to warrant the court
recruiting a lawyer to represent you. In your motion, you must explain
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Answers to Prisoner Litigants’ Common Questions
to the court why you cannot handle the case on your own. Be specific
about what challenges you are facing and why you are unable to
overcome those challenges.
Discovery
After the court enters a scheduling order, the discovery phase of your
case will begin. Discovery is a cooperative effort between you and the
defendants to exchange information that relates to your case. Your case
will proceed much more smoothly if you and defense counsel cooperate
with one another.
The court generally does not get involved in discovery. You should mail
your discovery requests and responses to defense counsel; you should
not send your discovery requests or responses to the court. It is common
to need additional time to prepare responses to discovery requests.
Although only the court can extend the deadline in the scheduling order
to complete all discovery, the parties can agree without the court’s
approval to give each other additional time to respond to discovery
requests. Keep in mind that the discovery deadline is the date by which
the parties must complete discovery. That means that you must mail your
discovery requests to defense counsel at least thirty days before the
discovery deadline so that the defendants have enough time to respond
to your requests before discovery closes.
Scope of Discovery: Under Federal Rule of Civil Procedure 26, the parties
must provide each other with information that is “relevant to any party’s
claim or defense and proportional to the needs of the case.” That means
you may have to give the defendants access to private and confidential
information, such as your medical records. You cannot refuse to respond
to a discovery request simply because you do not want to or because you
think it may hurt your case.
Interrogatories: Under Federal Rule of Civil Procedure 33, the parties may
ask each other to answer interrogatories, which is a legal term for written
questions. Your interrogatories must be specific and relevant to the
issues in the case. You may serve up to twenty-five interrogatories
Answers to Prisoner Litigants’ Common Questions
Page 15
(including subparts) on each defendant, and they may serve you with up
to twenty-five interrogatories. You can ask defense counsel to let you
serve more than twenty-five interrogatories. If he or she says no, you
may ask the court for permission to serve more than twenty-five
interrogatories. If you ask the court for permission, you must explain
why twenty-five interrogatories are not enough to get the information
you need, and you must tell the court how many additional
interrogatories you want to serve. In nearly all cases twenty-five
interrogatories will be sufficient, so draft your interrogatories carefully.
A party must respond to interrogatories by answering or objecting to
each interrogatory. If you object to a particular interrogatory, you must
explain the basis for your objection. You must respond to interrogatories
within thirty days of receiving them. Contact defense counsel if you
think you will need more time to respond. Your responses must be in
writing, and you must sign your responses. Your responses are made
under oath, which means that you are swearing under penalty of perjury
that your responses are truthful.
Requests for Production of Documents: Under Federal Rule of Civil
Procedure 34, each party may ask the other party for reports, records, or
videos that it believes it needs to prove his or her claims. The requests
must be specific and relevant to the issues in the case. Defendants do not
have to give you copies of documents that you can access through your
institution. For example, you should follow the policies at your
institution to inspect and copy your medical records. As with
interrogatories, you must respond within thirty days of being served
with requests for documents. Contact defense counsel if you think you
will need more time to respond.
Depositions: Under Federal Rule of Civil Procedure 30, a party may
arrange for a deposition to be conducted before an officer that is
appointed or designated under Federal Rule of Civil Procedure 28
(generally, a person who is authorized under federal law to administer
oaths). Rule 30 requires the party who arranges a deposition to pay for
the costs of recording it. Fed. R. Civ. P. 30(b)(3)(A). The court does not
arrange depositions for parties, even if they are representing themselves.
Also, just because you have been allowed to proceed in forma pauperis
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Answers to Prisoner Litigants’ Common Questions
does not mean the court will pay the costs of litigating your case. If you
are unable to pay for the recording costs, you cannot take depositions.
You must get the information you want by using other discovery tools,
such as interrogatories and document requests
Motions to compel
If the defendants do not respond to your discovery requests or refuse to
give you the information you request, you may file a motion to compel
production of the information. However, you must first raise your
concerns with defense counsel to try to resolve the dispute without the
court’s involvement. You can write defense counsel a letter explaining
the problems with the defendants’ discovery responses. You may ask the
court to get involved only if you and defense counsel are unable to
resolve the dispute on your own. Parties should be reasonable, flexible,
and work together in good faith. If defense counsel has a good basis for
objecting to a particular request, consider narrowing or modifying your
request. If the defendants’ concern is that your requests seek sensitive
information, ask whether the information can be produced with the
sensitive information redacted or removed.
If you file a motion to compel, include in your motion a copy of your
discovery request, a copy of the defendants’ response (if any), and an
explanation of why you believe the defendants’ response is inadequate.
You also must provide the court with proof that you tried to resolve the
dispute with defense counsel before you filed your motion. Proof could
be a copy of the letter you sent defense counsel or defense counsel’s
response.
Responding to a motion for summary judgment
The court will grant a motion for summary judgment if a party shows
that there is no disagreement about any material fact and that, even if
there are disagreements, the moving party is entitled to win based on the
law. Plaintiffs generally do not file motions for summary judgment
because defendants nearly always can show there are disagreements on
material facts.
Answers to Prisoner Litigants’ Common Questions
Page 17
If the defendants file a motion for summary judgment, you must
respond to the motion within thirty days after being served with the
motion. If you need more than thirty days to respond, you may ask the
court to give you more time. It is up to the court to decide how much
extra time (if any) to give you, so ask the court right away if you suspect
you will need extra time. If you do not respond to a motion for summary
judgment, the court may conclude that you do not oppose the motion
and that you no longer wish to continue with your case. Under Civil
Local Rule 7(d), failure to respond to a motion is enough of a reason for
the court to grant the motion.
The defendants’ summary judgment materials will include a motion, a
legal brief, proposed findings of fact, and supporting evidence, such as
affidavits or unsworn declarations of witnesses. You must respond to the
arguments in the defendants’ brief. You also must respond to each
proposed fact by stating whether you agree or disagree with the
proposed fact.
If you do not respond to a proposed fact, the court can conclude that you
agree with it. You may file your own proposed findings of fact, but you
should do that only if the fact you are proposing is not already
addressed in the defendants’ proposed facts. You must support your
proposed facts or your disagreements with the defendants’ proposed
facts with evidence. You cannot simply say, “Disputed” or “I disagree.”
You must identify the evidence that supports your disagreement.
Example:
Proposed Fact No. 1: The plaintiff never told anyone about his knee pain.
Response: Disputed. I told Officer Jones and Nurse Roberts about my
knee pain. See Declaration at ¶ 2; Health Services Records, Exhibit A at
pages 3-5.
You may cite to the defendants’ discovery responses or to documents
you obtained during discovery. You must attach the discovery responses
or documents you rely on. You may also include your version of what
happened in an affidavit or an unsworn declaration under 28 U.S.C. §
1746. An unsworn declaration is a way for you to declare to the court
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Answers to Prisoner Litigants’ Common Questions
that everything you have said in the declaration is true and correct. You
should not include opinions or legal conclusions in your declaration or
affidavit; you should include only facts about which you have personal
knowledge. Your declaration should conclude with: “I declare under
penalty of perjury that the foregoing is true and correct. Executed on
[date]. [Signature].”
Mediation
Mediation is an opportunity for the parties to discuss whether they can
agree to resolve their dispute without a trial. A mediator will help the
parties negotiate a settlement. Mediation works best when both parties
are interested in exploring settlement. For this reason, the court rarely
refers a case to mediation if only one of the parties requests it. You may
reach out to defense counsel to see if the defendants would be interested
in mediation; however, be aware that few § 1983 cases are resolved in
mediation. Most are resolved on summary judgment or at trial.
If the parties agree they would like to try mediation, the court will refer
the case to a magistrate judge who will facilitate the parties’ discussions.
After the mediation, the magistrate judge will report to the presiding
judge only whether the case settled. The magistrate judge will not tell the
presiding judge anything the parties said during the mediation.
If the case does not settle, the magistrate judge will return the case to the
presiding judge and the case will proceed.
Motions for reconsideration
Motions for reconsideration are disfavored and rarely granted.
Disagreeing with or being disappointed by a decision is not a reason to
ask the court to reconsider a decision it has made. The court will deny
motions that simply reargue arguments already rejected, that raise new
arguments, or that just disagree with the court’s analysis. If you disagree
with a particular decision, you may appeal the decision after your case is
completely resolved and judgment has been entered.
Answers to Prisoner Litigants’ Common Questions
Page 19
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