Collins Bey, Robert v. Haines, Tim et al

Filing 49

ORDER DENYING Plaintiff Robert L. Collins Bey's 40 motion to compel discovery and for discovery sanctions. Plaintiff's 47 motion for the court's assistance in recruiting counsel is GRANTED. Further proceedings in this case are STAYED pending the court locating counsel for plaintiff. Signed by Magistrate Judge Stephen L. Crocker on 9/09/2014. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________________
ROBERT L. COLLINS BEY,
ORDER
Plaintiff,
v.

13-cv-618-jdp

TIM HAINES, et al.,
Defendants.
__________________________________________________________________________________________

In this case, plaintiff Robert L. Collins Bey, an inmate housed at the Wisconsin Secure
Program Facility, is proceeding on claims of Eighth Amendment deliberate indifference and state
law negligence regarding the defendant prison officials' alleged failure to provide him with
adequate dental care by failing to provide him partial dentures and by delaying the extraction
of a broken tooth and replacement of a filling.
One focus of the litigation thus far has been plaintiff’s ability to prepare materials in
support of his motion for preliminary injunctive relief. The first set of deadlines on this motion
passed without plaintiff filing proposed findings of fact. After plaintiff filed a motion for an
extension of the amended briefing schedule, District Judge Barbara Crabb denied the PI motion
without prejudice to allow plaintiff to renew his motion whenever he was ready to do so. Dkt.
28. Judge Crabb also gave defendants a short time to respond to plaintiff’s allegations that he
was being denied adequate law library time. Currently before the court is defendants’ response
to Judge Crabb’s order as well as plaintiff’s motion to compel discovery and renewed motion for
the court’s assistance in recruiting counsel. I will address these filings in turn.

I. Law Library Time
Defendants have responded to plaintiff’s allegations about law library time, indicating
that he has received more library time than the average inmate because of the prison’s policy
allocating “priority time” for inmates who have cases with pending deadlines. Usually, the court
would ask plaintiff to explain whether defendants’ account squares with his earlier allegations,
but the question has become moot because, as stated below, I will be granting plaintiff’s motion
for the court’s assistance in recruiting counsel.

II. Motion to Compel and for Sanctions
Plaintiff has filed a motion to compel discovery of various items. First, plaintiff states that
only two of the six defendants (Boston and Giswold) to whom he sent interrogatories signed
defendants’ responses. Defendants later sent Thorpe’s and Anderson’s signatures. At the time
he submitted his motion to compel, plaintiff had not yet received signatures from defendants
Miller and Wommack. In addition to seeking the signatures, plaintiff argues that the lack of
defendants’ signatures, coupled with counsel’s earlier signature on the responses and the fact
that the responses all sound alike, shows that counsel, rather than the defendants, is providing
testimony and should be sanctioned. In response, defendants have now provided defendant
Wommack’s signature (they attempt to explain the delay by stating that Wommack was “away
from the institution”), and state that defendant Miller is unavailable to provide testimony for
medical reasons. In responding to plaintiff, defendants also withdrew Miller’s purported
testimony, stating that her earlier answers were “draft responses.”

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Although it is not unusual for counsel to prepare discovery responses, those responses
must be grounded in defendants’ own knowledge. Counsel’s after-the-fact submission of three
signatures and withdrawal of Miller’s responses (which counsel did not designate as “draft” at
the time) makes plaintiff’s suspicions understandable. Even assuming that defendants’ responses
properly indicate each defendant’s version of the facts, only two of the signatures were received
within the 30-day time limit contemplated by Fed. R. Civ. P. 33. That said, I will deny plaintiff’s
motion for sanctions at this point because I am not persuaded that defendants have wilfully
misled plaintiff or that plaintiff has been prejudiced by the relatively late responses. However,
I am warning defendants–and their attorney(s)– that the court will not tolerate such lax
discovery practice hereafter in this lawsuit. Regardless of plaintiff’s suspicions, he is now entitled
to rely on defendants’ responses as sworn testimony.
Plaintiff also asks the court to compel answers to the following specific interrogatories.
Defendants assert that plaintiff did not confer with them on these questions under Fed. R. Civ.
P. 37(a)(1) but they provide supplemental responses anyway.1

(A) Anderson Interrogatory No. 2: whether plaintiff was ever diagnosed or treated
for “any underlying gum disease.”
Defendant Anderson provides a supplemental response stating that she is a nurse, not
a dentist or dental hygienist, and has no expertise to answer this question, which is a sufficient
response.

1

The supplemental response is not signed by the individual defendants, but I understand them
to be incorporating the supplement into their original response, which has now been signed by all
defendants save the incapacitated defendant M iller.

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(B) James Thorpe2 Interrogatory No. 1: asking how many institutions defendant
Thorpe works at and the name of those institutions.
Defendant Thorpe’s initial response was vague (“3-5 institutions”) but he has now
supplemented that response by naming five institutions, so nothing further is needed.

(C) Thorpe, Boston and Giswold Interrogatory No. 3: whether a person with six
teeth would see his “quality of health” improve if he was given a partial denture.
Defendants initially responded that the question is overly broad and requires speculation
(although defendant Boston added that “each case would need to be evaluated individually.”)
Their supplemental response renews the earlier objection but adds that plaintiff “provides
insufficient information to provide an opinion because any response would depend on the
location and condition of the patient’s teeth and the condition of the lower mouth.” Plaintiff
contends that “in reality” this is a “‘yes-or-no’ question” but he does not have the medical
expertise to know that. These defendants, all dentists, are entitled to refrain from giving blanket
answers to medical scenarios without knowing more specifics.

III. Recruitment of Counsel
Finally, plaintiff has renewed his motion for the court’s assistance in recruiting him
counsel. Twice previously the court has denied his motion in part because the case had not even
progressed to the phase in which defendants often move for summary judgment based on a
plaintiff’s failure to exhaust his administrative remedies, and there was no reason to think that

2

There are two defendants with the last name Thorpe in this case. Only defendant James
Thorpe is involved in the discovery disputes at issue in this order.

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plaintiff would need counsel for this step. However, the deadline for exhaustion motions now
has passed. In addition, plaintiff qualifies as indigent based on the financial information he
previously submitted.
This court requires that a party seeking counsel shows that he has made reasonable
efforts to find a lawyer on his own and has been unsuccessful. Jackson v. County of McLean, 953
F.2d 1070, 1072-73 (7th Cir. 1992). Plaintiff states that he has contacted seven different
attorneys who have turned him down. Usually the court requires that plaintiff submit the
rejection letters he receives from counsel, which plaintiff has not done in this instance. However,
he has submitted approved disbursement requests earmarked for correspondence with outside
attorneys, which I conclude is sufficient in this case.
The final step is to determine “whether the difficulty of the case – factually and legally
– exceeds the particular plaintiff’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). As this case has proceeded
it has become apparent that this case will outstrip plaintiff’s abilities, particularly as it will
involve issues of deliberate indifference and duty of care in the dental context, which might
necessitate expert testimony. Accordingly, I will grant plaintiff’s motion and the court will
attempt to locate counsel for plaintiff. Further proceedings in this case will be stayed until
counsel is found, at which point the court will hold a telephonic status and scheduling
conference with both sides.

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ORDER
It is ORDERED that:
(1)

Plaintiff Robert L. Collins Bey’s motion to compel discovery and for
discovery sanctions, dkt. 40, is DENIED.

(2)

Plaintiff’s motion for the court’s assistance in recruiting counsel, dkt. 47,
is GRANTED.

(3)

Further proceedings in this case are STAYED pending the court locating
counsel for plaintiff.

Entered this 9th day of September, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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