Shaw, Terrance v. Hamblin, Gary et al
Filing
114
ORDER denying 87 Motion for Reconsideration; denying as moot 92 Motion for Leave to Proceed in forma pauperis; denying 95 Motion for Assistance in Recruiting Counsel; granting 105 Motion for Extension of Time. Trial will now begin on Monday, April 27, 2015. All dates leading up to trial are reset as follows: Rule 26(a)(3) Disclosures and all motions in limine: March 27, 2015. Responses: April 10, 2015. Telephonic Final Pretrial Conference: April 23, 2015, at 3:30 p.m.; counsel for defendant shall initiate the conference call to the court. Conference with parties: April 27, 2015, at 8:30 a.m. Jury Selection and Trial: April 27, 2015, at 9:00 a.m. Signed by District Judge William M. Conley on 2/3/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TERRANCE J. SHAW,
Plaintiff,
OPINION & ORDER
v.
12-cv-497-wmc
EDWARD WALL et al.,
Defendants.
Plaintiff Terrance J. Shaw initially brought this lawsuit alleging various claims
against staff members at Oshkosh Correctional Institution (“OSCI”), including violations of
the First Amendment, the Fourteenth Amendment and the Rehabilitation Act, 29 U.S.C.
§ 701 et seq.
Following briefing, the court granted defendants’ motion for summary
judgment on all but the Rehabilitation Act claim. (See Sept. 30, 2014 Opinion & Order
(dkt. #85); Dec. 17, 2014 Opinion & Order (dkt. #100).)
Shaw now seeks partial
reconsideration of this court’s decision granting summary judgment to defendant Matthew
Jones on First Amendment free speech and retaliation claims. (Dkt. #87.) Shaw also asks
the court to assist him in recruiting counsel to try his Rehabilitation Act claim. (See dkt.
##92, 95.) Finally, Shaw seeks to extend the trial date by sixty (60) days. (Dkt. #105.)
For the reasons that follow, the court will deny the first and second motions but will grant a
short extension to provide Shaw additional time to prepare for trial. No further extensions
will be granted except for extraordinary grounds shown.
I. Motion for Reconsideration
A. First Amendment Retaliation
The court originally granted Shaw leave to proceed on a retaliation claim against
Jones premised on allegations that Jones denied Shaw leave to donate to the Democratic
National Committee in retaliation for his complaints of disability discrimination. (See Oct.
16, 2013 Opinion & Order (dkt. #15) 13-14.) At the summary judgment stage, however,
the court granted Jones’s motion for summary judgment on the retaliation claim, because
Shaw failed to adduce evidence that would permit a reasonable trier of fact to find this
denial was causally connected to his grievances. (See Sept. 30, 2014 Opinion & Order (dkt.
#85) 18-20.) In his brief in opposition, Shaw had pointed out that: (1) Jones had been
employed at OSCI for more than nine years, which rendered improbable his claim that he
had erroneously believed such donations were prohibited; and (2) Jones denied Shaw’s
request a second time, even after being informed he needed to articulate a different
rationale. In response, the court found that this evidence did not support an inference that
Jones had a retaliatory motive:
Shaw appears to argue that, because Jones did not articulate a
permissible reason to deny Shaw’s disbursement request, he
must necessarily have been relying on an impermissible reason.
But this is mere speculation, just as one might speculate that
Jones acted for an arbitrary or no reason. Without more,
speculation as to Jones’s underlying motives is not enough to
defeat summary judgment. See Turley v. Rednour, 555 F. App’x
606, 609 (7th Cir. 2014) (citing Springer v. Durflinger, 518 F.3d
479, 484 (7th Cir. 2008); McCoy v. Harrison, 341 F.3d 600, 604
(7th Cir. 2003)).
(Id. at 19-20.)
Shaw now contends that the court failed to consider two pieces of evidence that
would allow a reasonable jury to infer a retaliatory motive. First, Shaw argues that Jones
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went “above and beyond” his job responsibilities by informing the new Unit Supervisor,
Debby Loker, that inmates were not allowed to donate to political parties. Second, Shaw
argues that on December 13, 2010, attorney Michele M. Hughes wrote a letter to Jones
regarding Shaw’s complaints of discrimination.
As an initial matter, Shaw did not cite this evidence as support for an inference of
causation in his original brief in opposition. (See Pl.’s Br. Opp’n (dkt. #63) 5-6 (section
entitled “Evidence Of Retaliatory Motive Against Jones”).)
Since a motion for
reconsideration is not an appropriate vehicle for arguing matters that could have been heard
during the pendency of the previous motion, this alone is grounds to deny Shaw’s motion.
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996);
Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir. 1986). Even if considered,
these two pieces of evidence would not alter the court’s initial decision, since Shaw has still
no evidence supporting an inference that his First Amendment protected activity (the filing
of grievances for discrimination) caused the denial of his later request for a political
disbursement. The critical point is that there remains no suspicious timing between Shaw’s
complaints of discrimination and the disbursement denials, nor any evidence of ambiguous
statements evincing possible retaliatory motives.
In fairness, Shaw continues to challenge the credibility of Jones’s stated reasoning,
but “when challenges to witness[es]’ credibility are all that a plaintiff relies on, and he has
shown no independent facts – no proof – to support his claims, summary judgment in favor
of the defendant is proper.” Springer, 518 F.3d at 484 (emphasis in original). Said another
way, Shaw once again attempts to undermine Jones’s stated rationale for denying the
disbursement requests in his motion to reconsider but has failed to produce evidence,
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beyond his own speculation, that the actual motivation was to retaliate against him for
complaints of disability discrimination.1 Accordingly, the court will deny his motion for
reconsideration on this point.
B. First Amendment Free Speech
Shaw was granted leave to proceed on a separate First Amendment free speech claim
challenging Jones’s denial of his political disbursement requests. At summary judgment, the
court granted Jones summary judgment on qualified immunity grounds, holding that a
prisoner’s right to donate to a political campaign is not clearly established. While a close
question, the court pointed out that Shaw could point to no factually analogous case law,
nor could this court find any. Instead, Shaw relied on cases like Citizens United v. Federal
Election Commission, 558 U.S. 310, 360 (2010), without taking into account the effect that
incarceration may have on his constitutional rights. After considering the discretion prison
officials generally enjoy in handling prisoner property, and the deference due to prison
officials’ decisions, the court concluded that Jones’s decision, while legally mistaken, was not
so “egregious and unreasonable that, notwithstanding the lack of an analogous decision, no
reasonable corrections officer could have thought he was acting lawfully.”
Abbott v.
Sangamon Cnty., Ill., 705 F.3d 706, 723-24 (7th Cir. 2013).
Shaw offers two arguments on reconsideration. First, he argues that Jones did not
articulate any permissible reasoning for his actions (like ensuring that Shaw had money
Shaw’s citation to Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995), does not undermine this
conclusion. That case holds that a successful retaliation claim “requires a finding that ‘the prison
authorities’ retaliatory action did not advance legitimate goals of the correctional institution or was
not tailored narrowly enough to achieve such goals.’” Id. at 806 (quoting Rizzo v. Dawson, 778 F.2d
527, 532 (9th Cir. 1985)). Pratt does not hold that the absence of a legitimate goal can serve as
affirmative evidence of causation, nor would such a holding be consistent with case law that precludes
plaintiffs from relying on their own speculation to prove causation in a retaliation case.
1
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available for his release), meaning Jones personally did not act with such reasoning in mind.
As the court noted in its original opinion, however, qualified immunity is an objective
inquiry. Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999). Accordingly, Jones’s subjective
good or bad faith is irrelevant.
Second, Shaw argues that even if the first denial was not egregious and unreasonable,
the second was, because by that time Jones had notice that his decision did not comply with
the Department of Corrections’ procedures in denying disbursement requests. Certainly,
Jones was on notice of the prison procedures he was supposed to follow after his first
decision was overturned by Corrections Complaint Examiner (“CCE”) Welcome Rose, but
that is a different question than whether he was aware his actions violated clearly
established constitutional law. Nothing in either of Rose’s decisions would tend to put a
reasonable officer on notice of a constitutional violation, which is the relevant question for
qualified immunity purposes.
Accordingly, the court will deny Shaw’s request for
reconsideration on this claim as well.
II. Motion for Assistance in Recruiting Counsel
Shaw also asks the court to appoint an attorney to represent him at the upcoming
trial on his Rehabilitation Act claim.2 (Dkt. #95.) While civil litigants like Shaw have no
constitutional or statutory right to the appointment of counsel, e.g., Ray v. Wexford Health
Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013); Luttrell v. Nickel, 129 F.3d 933, 936 (7th
Cir. 1997), the court has the discretion to recruit a volunteer in an appropriate case. Shaw
has satisfied the threshold requirement of Jackson v. County of McLean, 953 F.2d 1070, 1072
In support of that request, Shaw has concurrently filed a motion to proceed in forma pauperis in this
case going forward. (Dkt. #92.) That motion will be denied as moot, because the court does not
find that this is an appropriate case for volunteer counsel in any event.
2
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(7th Cir. 1992), that he make reasonable efforts to retain counsel on his own before the
court will seek a volunteer. Thus, the central question remaining is “whether the difficulty
of the case – factually and legally – exceeds [Shaw’s] capacity as a layperson to coherently
present it to the judge or jury himself.” Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007).
After reviewing the materials Shaw has submitted, the court concludes that his case
does not present the sort of exceptional circumstances that would justify recruitment of
counsel.
The court credits his representation that he is indigent and lacks specialized
training in the law, but this is true of nearly all pro se litigants and does not itself justify
recruitment of counsel. Shaw next claims that he has no way of “investigating the crucial
facts of his claims” and that his case is “complex.” To the contrary, Shaw’s one remaining
claim under the Rehabilitation Act essentially comes down to a credibility contest. As a
result of a disability that prevents him from working, Shaw alleges that he is required to
attend canteen last, when the products he needs have run out. In contrast, defendants
claim that: Shaw attends canteen in one of the first groups; the canteen almost never runs
out of products; and Shaw has voluntarily chosen not to work. Accordingly, there would
appear to be little or nothing more that Shaw would need to “investigate” in order to
present his version of events to a jury.
Nor has Shaw pointed to any specific facts suggesting that he is unable to litigate his
own case. Clearly, he is able to articulate his claim and marshal facts in support. While the
record makes clear that he has health problems, Shawdoes not suggest that they would
prevent him from presenting his case coherently to a jury.
Certainly, pro bono counsel would be able to present Shaw’s case more effectively than
he himself can (for example, with respect to the cross-examination of defendants). But “if
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that were the test, district judges would be required to request counsel for every indigent
litigant.” Pruitt, 503 F.3d at 655 (quoting Johnson v. Doughty, 433 F.3d 1001, 1006 (7th
Cir. 2006)) (internal quotation marks omitted). As indicated in a previous opinion, this
court receives many more requests for counsel than the small pool of available volunteers
can accommodate. Based on all the facts and circumstances before the court at present, this
matter is not exceptional, and neither the case itself nor Shaw as the plaintiff suggests that
he is unable to try it on his own. Accordingly, the court will deny the motion for assistance
in recruiting pro bono counsel.
III. Motion for Extension of Time to Prepare for Trial
While the court can find no justification to recruit counsel, it can give Shaw a short
extension to prepare for trial, even without crediting the specific reasons he offers for doing
so. Shaw will find that his best preparation for trial is to simplify his case to its essential
facts, themes and law, which is advice available from Gerry Spence, as well as any good trial
preparation treatise. This is not a complicated case. Shaw will almost certainly be ill-served
by trying to make it one. Nevertheless, his request for a short, sixty (60) day extension is
reasonable enough, understanding that no further extension of this civil trial date will be
granted except for a showing of extraordinary good cause.
ORDER
IT IS ORDERED that:
1) Plaintiff Terrance J. Shaw’s motion for reconsideration (dkt. #87) is DENIED.
2) Plaintiff’s motion to proceed in forma pauperis (dkt. #92) is DENIED AS MOOT.
3) Plaintiff’s motion for assistance in recruiting counsel (dkt. #95) is DENIED.
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4) Plaintiff’s motion for extension of time to prepare for trial (dkt. #105) is
GRANTED. Trial will now begin on Monday, April 27, 2015. All dates leading
up to trial are reset as follows:
a. Rule 26(a)(3) Disclosures and all motions in limine: March 27, 2015
b. Responses: April 10, 2015
c. Telephonic Final Pretrial Conference: April 23, 2015, at 3:30 p.m.;
counsel for defendant shall initiate the conference call to the court.
d. Conference with parties: April 27, 2015, at 8:30 a.m.
e. Jury Selection and Trial: April 27, 2015, at 9:00 a.m.
Entered this 3rd day of February, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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