Schlemm, David v. Frank, Matthew et al
ORDER granting 154 Motion for Extension of Time. (Plaintiff's Brief in Reply due 2/10/2016); denying 155 Motion for Reconsideration; denying 156 Motion for Assistance in Recruiting Counsel. Signed by District Judge William M. Conley on 2/3/2016. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION and ORDER
On January 13, 2015, the court denied pro se plaintiff David Schlemm’s motion to
stay the scheduling order, but gave plaintiff an extension of more than two weeks to file his
reply brief in support of summary judgment. (Dkt. #149.) Instead, plaintiff has filed three
new motions: (1) motion for reconsideration of the January 13, 2016 order (dkt. #155); (2)
a motion for assistance in recruiting counsel (dkt. #156); and (3) a motion for an additional
extension until February 10, 2016, in which to file his reply brief (dkt. #154).
Motions for Reconsideration and for Assistance in Recruiting Counsel.
In his motions for reconsideration and for assistance in recruiting counsel, plaintiff
contends that the court’s January 13 order mischaracterized his relationship with his former
appointed counsel by stating that counsel withdrew after plaintiff became “unwilling or
unable to work with his counsel.”
(Dkt. #149 at 2).
He argues that this is an unfair
characterization of events because he merely asked his counsel to present reasonable
arguments to the court, but they refused to do so and eventually withdrew. Plaintiff argues
that the court should appoint new counsel for him because it was not his fault that his
previous counsel withdrew.
Both motions will be denied. Plaintiff accuses his counsel of failing to raise certain
matters with the court, but the only matters he identifies are either clearly meritless or would
have expanded the case beyond the scope of the Seventh Circuit’s remand. For example,
plaintiff complains that his counsel failed to accuse defendants of contempt for various
alleged deficiencies with the scheduling and activities surrounding the 2015 Ghost Feast,
while the only issue relating to the Ghost Feast at issue in this case is whether plaintiff is
entitled to eat venison at the Ghost Feast. Consistent with their ethical duty, as well as scope
of their engagement, counsel properly refused to accuse defendants of contempt for matters
outside the scope of this case.
Similarly, plaintiff contends that counsel should have agreed to seek certification of a
class action, despite this case being remanded to consider two claims brought by plaintiff as
an individual. In particular, the Seventh Circuit did not reverse this court’s earlier decisions
on class certification and the mandate did not suggest that the class certification issue should
be revisited. Thus, those decisions are “law of the case,” and counsel acted appropriately in
declining to expand plaintiff’s claims beyond the scope of the mandate.
Plaintiff also suggests that his counsel were disregarding his right to a jury trial by
telling him that the case may be tried to the court, rather than a jury. As the court has
explained on numerous occasions now, however, the only claim remaining in this case is
plaintiff’s RLUIPA claim. Under RLUIPA, plaintiff is limited to declaratory and injunctive
relief. See Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009) (monetary damages are not
available as a remedy under RLUIPA). As such, he has no right to a jury trial. See Kramer v.
Banc of Am. Securities, LLC, 355 F.3d 961, 966 (7th Cir. 2004) (“There is no right to a jury
where the only remedies sought (or available) are equitable.”). Once again, plaintiff’s counsel
was correct in explaining to him that the court will hold a bench trial on plaintiff’s RLUIPA
claim. See Fed. R. Civ. P. 39(a)(2) (“The trial on all issues so demanded must be by jury
unless . . . the court, on motion or on its own, finds that on some of all of those issues there is
no federal right to a jury trial.”)
Plaintiff further argues that he was unhappy with counsel’s settlement negotiations
and also with the report of the expert they hired. These complaints are frivolous and do not
suggest that counsel was inadequate. Rather, they are simply further evidence that plaintiff
and counsel had irreconcilable disagreements about case strategy and management that
required counsel to withdraw. Worse, they indicate that any effort to recruit new counsel
would end similarly, something that was already obvious given the impeccable credentials of
the originally recruited counsel and plaintiff’s obdurate misunderstanding of his remaining
Plaintiff was warned multiple times that in accepting the court’s assistance in
recruiting counsel, he was obligated to work cooperatively with his recruited attorneys and
permit them to exercise their professional judgment in deciding which matters are
appropriate to bring to the court’s attention and in what form. (Dkt. #100 at 2.) More
specifically, plaintiff was warned that he did not have the right to require counsel to raise
frivolous arguments or to follow his every directive. (Id.) Finally, he was warned that if he
failed to work with counsel, the court would not likely recruit replacement counsel for him.
Nonetheless, plaintiff continues to raise objections to his former-counsel’s professional
judgment in a transparent, meritless and ultimately pointless attempt to blame his former
counsel. Plaintiff’s filings demonstrate that he remains unwilling or unable to accept the
professional judgment and strategic decisions of well-qualified attorneys. The court has no
reason to believe that plaintiff would cooperate any better with replacement counsel. Nor
has plaintiff shown any reason why he is entitled to replacement counsel.
plaintiff’s motions for reconsideration and for assistance in recruiting counsel are denied.
Motion for Extension of Time to File Reply Brief.
In the January 13 order, the court gave plaintiff until January 26, 2016, to file his
reply brief (originally due January 7). Plaintiff had argued that he needed a legal loan to
finish his reply brief, but the court pointed out that plaintiff had been able to file several
multi-page filings despite his supposed lack of funds. Additionally, plaintiff could apply for a
new legal loan for 2016.
Plaintiff now seeks a further extension to reply until February 10, 2016 because
although he applied for a new legal loan, he has yet to receive a response. Plaintiff further
states that he needs the funds to make photocopies for his reply brief and to order other,
unspecified supplies. He also refers again to his limited access to the law library.
The court is skeptical of plaintiff’s arguments that he needs legal loan funds or library
time in order to submit his reply brief, considering that plaintiff was able to file 28 pages of
documents, including legal analysis, with his most recent motions. If plaintiff were to spend
his time and resources litigating the claims that are actually at issue in this case, he likely
would have been able to complete and submit his brief by now. Nonetheless, the court will
grant plaintiff this last extension, until February 10, 2016, to file his reply brief. Plaintiff will
receive no further extension.
Additionally, plaintiff should be aware that the court will not likely move the trial
date, scheduled for March 19, 2016. Thus, as soon as plaintiff submits his reply brief, he
should begin organizing all of the evidence that he will need to present his claims at trial.
Specifically, plaintiff should review the “Order in Court Trial Cases” that was included with
the Preliminary Pretrial Conference Order. (Dkt. #10.)
IT IS ORDERED that:
Plaintiff’s motion for reconsideration (dkt. #155) and motion for assistance in
recruiting counsel (dkt. #156) are DENIED.
Plaintiff’s motion for extension of time until February 10, 2016, to file his reply brief
(dkt. #154) is GRANTED, although no further extensions will be allowed.
Entered this 3rd day of February, 2016.
BY THE COURT:
William M. Conley
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