Castellano v. Kuepper et al

Filing 14

SCREENING ORDER signed by Judge J P Stadtmueller on 7/29/2022. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the balance of the filing fee as direct ed. 13 Plaintiff's Motion for an Order Regarding Exhaustion of Administrative Remedies is DENIED. 11 Plaintiff's Motion to Amend Complaint is GRANTED; Plaintiff's Amended Complaint (ECF No. 11-1) to be docketed as the OPERATIVE complaint. Defendants Cheryl Eplett, Ashley Walther, Alyssa Maloney, Todd Gillingham, Jeffrey Freund, and Daniel McMillan are DISMISSED from this action. Plaintiff may PROCEED against Defendants Ryan Kuepper and Patricia Lis on a First Amendment retaliation claim. A copy of Plaintiff's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. Defendants to FILE any exhaustion-related ch allenges in a motion for summary judgment within 45 days. Motions to dismiss must comply with specified requirements. See Order. (Attachments: # 1 Prisoner & Pro Se Guides) (cc: all counsel, via mail to John J Castellano and Warden (Order only) at Oshkosh Correctional Institution)(jm)

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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. Page 22 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 2022. 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 Page 2 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. Page 4 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 end 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 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. Page 6 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 Page 7 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 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. Page 8 Answers to Prisoner Litigants’ Common Questions 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 (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 court that describe a party’s legal or factual statements about the case. Pleadings may include a complaint, an answer, a motion, or a brief. 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 for free. Relief: What a party wants if it wins a lawsuit or a motion. Answers to Prisoner Litigants’ Common Questions 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. Replies are optional. The court will then decide the motion. 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. Page 10 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 judgment 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 Page 11 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 Page 12 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 will decide the motion without your input. 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 your allegations against all the defendants you want to sue. You cannot simply refer to your prior complaint or rely on other filings; all your allegations must be in a single document. Answers to Prisoner Litigants’ Common Questions Page 13 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 Page 14 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 Page 16 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. Because the plaintiff has the burden of proof at trial, it is generally the defendant who moves for summary judgment on the ground that the plaintiff lacks evidence to meet that burden. 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 will assume that all facts asserted by the defendants are true and will decide the motion without your input. 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 will 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 that everything you have said in the declaration is true and correct. You should not include opinions or legal conclusions in your declaration or Page 18 Answers to Prisoner Litigants’ Common Questions 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].” If the defendants file a summary judgment motion, the case will survive and proceed to trial only if the plaintiff is able to demonstrate in his response materials that there is a dispute of material fact. If neither party files a summary judgment motion, the case will proceed to trial. 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 rarely granted. Disagreeing with a decision is not a reason to ask the court to reconsider its decision. The court will deny motions that reargue arguments, that raise new arguments, or that simply disagree with the court’s analysis. Answers to Prisoner Litigants’ Common Questions Page 19

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