Schlemm, David v. Frank, Matthew et al

Filing 200

ORDER denying 175 Motion to reconsider appointment of counsel; granting in part and denying in part 178 Motion to Compel; granting 179 Motion in Limine ; denying 191 , 196 , 197 , 198 Motions for Issuance of Subpoenas; denying as moot [19 5] Motion for finding of state misconduct. Plaintiff may not elicit expert testimony from Randy Cornelius, Bryan Krist or Roy Red Hail, but may elicit relevant fact testimony from these witnesses. Signed by District Judge William M. Conley on 3/18/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
DAVID SCHLEMM,
Plaintiff,

ORDER

v.

11-cv-272-wmc

JOHN LITSCHER,
Defendant.
_________________________________________________________________________________
This case is set for trial commencing on Monday, March 21, 2016. The court
held a final pretrial conference on March 16, 2016, at which the court made several
rulings, which this order now formalizes. In addition, plaintiff hand-delivered to the
court during that conference additional materials that he presented had also been mailed
and that were marked as “Exhibit A” (dkt. #198), including a document labeled “Motion
Based on State’s Misconduct” and four draft subpoenas, which were filed the following
day upon receipt by mail in the clerk’s office (dkts. ##195, 191, 196, 197, 198,
respectively).

The following order memorializes the court’s ruling with respect to these

submissions as well.
ORDER
IT IS ORDERED that:
1.

Plaintiff’s motion to reconsider appointment of counsel (dkt. #175) is DENIED.
During the conference, plaintiff also chose to forgo the assistance of advisory
counsel from the Perkins Coie law firm.

2.

Plaintiff’s motion to compel discovery (dkt. #178) is GRANTED IN PART and
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DENIED IN PART as follows. Plaintiff’s request to take several depositions is
denied for the reasons stated on the record and his request for discovery contained
on a disc is denied as moot, as defendant provided the discovery to plaintiff at the
conclusion of the hearing. (Plaintiff’s former counsel also subsequently confirmed
having mailed a hard copy to plaintiff at the time it was granted leave to withdraw
as counsel.) With respect to plaintiff’s request for responses to his second set of
discovery, that motion is also denied as moot to the extent plaintiff has already
received defendant’s responses, but defendant shall take reasonable steps to ensure
that plaintiff has access to those responsive documents held by the institution
complaint examiner at the Green Bay Correctional Institution immediately upon
his return to the prison.
3.

Defendant’s motion in limine regarding expert testimony (dkt. #179) is
GRANTED. Plaintiff may not elicit expert testimony from Randy Cornelius,
Bryan Krist or Roy Red Hail, but may elicit relevant fact testimony from these
witnesses.

4.

Plaintiff’s motion for finding of state’s misconduct (dkt. #195) is DENIED as
moot. As explained during the final pretrial conference, while the Wisconsin
Department of Corrections may be faulted for its delays in accommodating
plaintiff’s mailings, those delays were of a few days only and do not excuse
plaintiff’s own delays in responding to and seeking discovery, as well as delays in
submitting motions, proposed findings, requests for subpoenas and other pretrial
filings leading up to trial, all of which would have been untimely even without
delays in mailing. Nevertheless, as indicated at the conference, the court has
made efforts to ensure the appearance of plaintiff’s designated witnesses at trial
and will consider holding the trial record open for good cause shown, should those
efforts prove inadequate.

5.

Having just received the proposed subpoenas a few days before trial (dkts. ##191,
196, 197 & 198), the issuance of those subpoenas is DENIED, although
accommodations will be made to arrange for testimony as set forth above.
Entered this 18th day of March, 2016.
BY THE COURT:
/s/
William M. Conley
District Judge

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