Lindsey, Leighton v. Clark, T. et al

Filing 69

ORDER denying 39 Motion for an order directing prison staff toallow plaintiff to use legal loan funds to contact more than three attorneys; denying 43 and 49 Motion for Appointment of Attorney Gregory Dutch to this case; denying 44 motion to compel discovery; staying a ruling on 51 Motion to Compel, defendants are to submit the document to the court in camera; denying as moot 54 and 60 motions for protective order and denying 62 Motion for injunction regarding copies of legal documents. Signed by Magistrate Judge Stephen L. Crocker on 8/16/2013. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________________
LEIGHTON D. LINDSEY,
ORDER
Plaintiff,
v.

12-cv-923-bbc

TANIA CLARK, DAVID GARDNER,
ROBERT HABLE, TROY HERMANS,
STACEY HOEM, MARY MILLER,
SARAH MASON, SCOTT RUBIN ASCH,
JENNIFER ANDERSON, JERRY SWEENEY,
ANDRES NAGLE, DEANNA THEIN,
MARLA WALTERS, KEVIN TRIPP,
JEFFREY KNUPPLE, BURTON COX,
JONI SHANNON-SHARPE,
BRIAN KOOL and MELANIE HARPER,
Defendants.

__________________________________________________________________________________
Plaintiff Leighton Lindsey is proceeding in this case on his claim that defendants violated
his rights under the Eighth Amendment by failing to place him on a “no kneel” restriction.
Currently before the court is a plethora of motions filed by plaintiff. Each motion is discussed
in turn below:

I. Legal Loans to Contact Attorney
First, plaintiff has filed a motion asking for a court order directing prison staff to allow
him to use legal loan funds to contact more than three attorneys in an effort to gain
representation.1 Dkt. 39. He includes a letter from an assistant attorney general telling him that
it is the DOC’s policy to restrict inmates to three representation-seeking letters per case. This

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As noted in the court’s April 24, 2013 order, plaintiff already had contacted three attorneys, all
of whom declined to take his case. Dkt. 28.

court does usually not intervene in this type of dispute (a matter that is not actually a claim on
which plaintiff is proceeding) short of a showing that the restriction is entirely preventing
plaintiff from litigating the case, and plaintiff falls far short of making such a showing.

II. Motion to Appoint Counsel
Next, plaintiff has filed a motion (and then an amended version of that motion) in which
he asks that the court appoint Attorney Gregory Dutch to represent him in this case. Dkt. 43,
49. Plaintiff includes a letter he received from Attorney Dutch appearing to show interest and
stating, “Perhaps you could request Judge Crabb to assign me to handle the case, there is no
money for fees from the court, but there is a possibility of reimbursement for costs.”
There is no statutory authority to “appoint” counsel in this type of civil litigation; the
most it can do is seek a volunteer. See Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67
(7th Cir. 2013). Accordingly, I will deny plaintiff’s motions that seek appointment. However,
the court is always interested in attorneys willing to take on pro bono representation of indigent
clients, and Attorney Dutch is correct that this court has a program to reimburse pro bono
attorneys for their out-of-pocket costs in cases such as this one. Court staff will contact Attorney
Dutch to discuss this matter and to determine if he still is genuinely interested in undertaking
pro bono representation of plaintiff in this lawsuit.

III. Motions to Compel
Plaintiff has filed a motion to compel discovery, dkt. 44, stating that defendants have not
answered interrogatories and production of documents.

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He also seeks a $15 sanction.

Defendants, however, stated that they sent him responses only a couple of days before the
motion to compel was filed. This suggests that these responses crossed in the mail with
plaintiff’s motion. Therefore I will deny the motion without prejudice.
Plaintiff also states that the documents he requires will be very costly to obtain and will
run up against his $50 legal loan. To the extent that he is seeking court intervention with the
legal loan process, the court’s response is similar to the restriction on attorney letters. Plaintiff
fails to show that he is being blocked from litigating his case, and in any case, defendants note
that he is being given an exception to the normal rule by being given a $100 limit. Thus, this
portion of plaintiff’s motion is denied as well.
Plaintiff has filed a second motion to compel discovery, dkt. 51, in which he seeks
disciplinary records of defendants Mary Miller and Burton Cox, more specifically information
showing those defendants being disciplined for “medical care mistreatment.” Defendants state
that Cox has no documents fitting this request, and Miller has one document, which defendants
state “hinges on plaintiff’s meaning intended with the phrase ‘medical case mistreatment.’”
Defendants state that they are willing to share the document with an attorney should plaintiff
acquire one, but object to plaintiff’s possession of it “due to security concerns associated with
an inmate [having] possession of a document adverse to correctional institution staff.” They also
object on the basis that it would not lead to the discovery of admissible evidence. These
questions are difficult to answer without knowing what is contained in the document. I will stay
a ruling on this motion and direct that defendants submit a copy of the document for in camera
review.

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IV. Motions for Protective Orders
Plaintiff has filed two motions for protective orders. First, he seeks an order prohibiting
DOC staff from purging personnel records, because it is his understanding that those records are
eliminated after a year. Dkt. 54. Defendants stated that the DOC and DOJ are preserving the
relevant files, so this motion will be denied as moot.
Next, plaintiff seeks an order regarding files relating to the special needs group and
comfort item review group from 2010 to the present. Dkt. 60. Defendants have assured the
court that they have already provided plaintiff with the documents he has requested about these
groups, and thus I will deny the motion.

V. Injunctive Relief for Legal Copies
Finally, plaintiff has filed a motion for an injunction directing prison staff to make copies
of plaintiff’s legal documents within three days. Dkt. 62. He states that it has taken as long as
seven days to receive copies, while other prisoner receive copies in four to five hours.
Defendants, predictably, oppose the motion, stating that prison staff is working diligently on
prisoners’ request for copies. The delays plaintiff states he has encountered fall far short of the
type of delay that threatens his ability to litigate the case, so I will deny the motion. To the
extent that plaintiff experiences further delays in receiving copies that threaten deadlines set in
this court, he is always free to inform the court of that fact. But given plaintiff’s side of the story
so far, these delays are manageable and plaintiff’s best course of action is to be diligent in making
his requests.

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ORDER
It is ORDERED that:
(1)

Plaintiff Leighton Lindsey’s motion for an order directing prison staff to
allow him to use legal loan funds to contact more than three attorneys,
dkt. 39, is DENIED.

(2)

Plaintiff’s motions for the appointment of Attorney Gregory Dutch, dkt.
43, 49, are DENIED.

(3)

Plaintiff’s motion to compel discovery, dkt. 44, is DENIED.

(4)

A ruling on plaintiff’s second motion to compel discovery, dkt. 51, is
STAYED. Defendants shall submit the relevant document to the court in
camera as discussed above.

(5)

Plaintiff’s motions for protective orders, dkt. 54, 60, are DENIED as
moot.

(6)

Plaintiff’s motion for an injunction regarding copies of his legal
documents, dkt. 62, is DENIED.

Entered this 16th day of August, 2013.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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