Gonzalez, Jorge v. Kussmaul et al
ORDER that plaintiff Jorge Gonzalez's 43 , 51 , 62 motions for assistance in recruiting counsel are DENIED without prejudice; plaintiff's 50 , 60 motions to compel discovery are DENIED; plaintiff's 8 , 57 motions for preliminary injunction are DENIED. Signed by District Judge William M. Conley on 7/31/2014. (nln),(ps) Modified on 7/31/2014 (nln).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION AND ORDER
SGT. KUSSMAUL, DR. HOEM, C.O.
BARR, DR. AMARANTE, and BOB
In this pro se prisoner case, the court previously granted plaintiff Jorge Gonzalez
leave to proceed on (1) a First Amendment claim against defendant Sergeant Kussmaul
for allegedly denying telephone use; and (2) an Eighth Amendment deliberate
indifference claim against defendants Kussmaul, Correctional Officer Barr, Dr. Hoem,
Dr. Amarante and Bob Vickery for allegedly denying medical treatment for serious
mental health needs. (Dkt. #21.) Before the court are several motions and other filings,
all by plaintiff Gonzalez, which can be grouped roughly into the following categories: (1)
filings entirely unrelated to the claims for which plaintiff has been granted leave to
proceed; (2) filings concerning his inability to prosecute this lawsuit because of lack of
funds for postage and lack of access to law library and other legal resources; (3) motions
to compel; (4) motions for a temporary restraining order; and (5) motions for assistance
in recruitment of counsel. For the reasons that follow, the court will deny all motions.
Motions and Filings Unrelated to Claims at Issue in this Lawsuit
As an initial matter, Gonzalez has filed numerous declarations and other
documents raising concerns entirely unrelated to the claims for which he has been
granted leave to proceed in this lawsuit. (2/19/14 Declaration (dkt. #41) (complaining
of retaliation generally); 3/4/14 Declaration (dkt. #44) (complaining of retaliation in
alleged confiscation of personal photos and religious materials and issuing of conduct
reports); 4/18/14 Declaration (dkt. #52) (complaining of lost legal documents sent from
his mother and inappropriate, sexual pat down by non-defendant correctional officer);
5/16/14 Declaration (dkt. #56) (complaining again about sexual touching by nondefendant correctional officer).)
Except for concerns about funds for postage and access to legal resources for
purposes of prosecuting this lawsuit, which this court addresses below, none of these
filings are properly before this court.
To the extent his voluminous filings can be
construed as a request for leave to amend his complaint, the court also denies that
request as none of the possible claims or defendants are sufficiently close to justify
joining them in this lawsuit.
See Fed. R. Civ. P. 20 (authorizing joinder of multiple
defendants into one action only if “any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and any question of law or fact
common to all defendants will arise in the action.”); Wheeler v. Wexford Health Sources,
Inc., 689 F.3d 680, 683 (7th Cir. 2012) (“A litigant cannot throw all of his grievances,
against dozens of different parties, into one stewpot.”). Of course, Gonzalez may pursue
claims for retaliation generally or sexual assault in separate lawsuits.
II. Motions and Filings Concerning Lack of Postage and Access to Legal Resources
In a filing dated February 11, 2014, Gonzalez complains of being denied access to
the law library after being placed on cell confinement. (Dkt. #40.) More specifically,
Gonzalez contends that he needed access to the lab library in order to “answer the
defendants’ brief before the pretrial conference scheduled on February 25, 2014.” (Id.)
Despite this lack of access, however, Gonzalez was able to file (1) a response to
defendant’s answer (dkt. #38); (2) a reply in support of his motion for preliminary
injunction (dkt. #39); and (3) a declaration concerning management of his inmate trust
account, among other issues (dkt. #41). Moreover, plaintiff acknowledges in his filing
that he was placed in cell confinement because of a contraband string found in his cell.
Finally, defendants also submit an affidavit stating that while Gonzalez’s request for law
library access on February 4, 2014, was denied, he had been offered library access on
January 30, 2014, and declined to go. (Defs.’ Resp. (dkt. #45).)
This lawsuit does not provide Gonzalez with an opportunity to escape punishment
for violating prison rules. At most, it requires that he be given access to legal materials
within those rules. At worst, since plaintiff appears able to pursue his claims even under
current restrictions, plaintiff’s claim would appear to be related to actions of others, not
part of this suit and not before this court.
In other filings, Gonzalez complains generally about access to the law library and
states that the lack of access “hinders my ability to self litigate.” (1/9/14 Declaration
(dkt. #25).) Again, Gonzalez’s filings to date do not demonstrate any prejudice. Indeed,
Gonzalez is a prolific filer. Plaintiff also fails to show any prejudice in the alleged delay
in receiving copies of the complaint and order. (1/14/14 Declaration (dkt. #27).) Nor to
date has this case required legal research. The court has explained the law surrounding
plaintiff’s claims in the screening order. At this stage, plaintiff should focus on collecting
evidence to support those claims, although plaintiff has no current obligation to submit
this evidence to the court at this time.
Lastly, Gonzalez claims that he lacks funds in his inmate trust account to cover
postage for his legal filings. (2/19/14 Declaration (dkt. #41).) Once again, however, the
docket undermines this complaint. Since this case was screened to go forward, Gonzalez
has not only filed 27 documents in roughly six months, a pace of roughly one filing per
week, he has pointed to no adverse action suffered because of his inability to move or
respond. Accordingly, Gonzalez has not shown that his alleged lack of funds for postage
in anyway hindered his efforts to litigate this case.
III. Motions to Compel
Plaintiff seeks an order compelling defendant Amarante to respond fully to
(Mot. to Compel (dkt. #50).)
Specifically, plaintiff challenges Dr.
Amarante’s responses to four interrogatories as “incomplete.”
follow, the court rejects these challenges and will deny the motion.
For the reasons that
In Interrogatory No. 1, Gonzalez requests all places of employment and volunteer
positions from 2010 to 2014. In response, Amarante states that she was employed by
the Department of Corrections from 2008 to 2010. During that time, Amarante worked
at WSPF, where Gonzalez is incarcerated. The court agrees with defendants that absent
some specific showing by Gonzalez, Amarante’s employment post-2010 (in other words,
after her employment with WSPF ended) is neither relevant to Gonzalez’s claim nor
reasonably calculated to lead to the discovery of relevant information.
In response to Interrogatory No. 2, seeking information about discipline while
employed with the DOC, Amarante responded that she had “not been disciplined for any
actions concerning plaintiff, plaintiff’s claims, or claims similar to those made by
plaintiff.” (Defs.’ Resp. (dkt. #53) 2.) The court similarly finds this response adequate
to address Gonzalez’s interrogatory.
Any additional information about disciplinary
actions is neither relevant to Gonzalez’s claim nor reasonably calculated to lead to the
discovery of relevant information.
In response to Interrogator No. 5, asking for any other names used besides Maria
Indonsia Amarante, she denied using any other names during her employment with the
DOC. Absent some further showing by plaintiff, the court finds defendant’s implicit
limitation on plaintiff’s question reasonable.
More specifically, plaintiff offers no
information about Amarante’s other or prior names relevant to Gonzalez’s claim or
reasonably calculated to lead to the discovery of relevant information.
Gonzalez’s final challenge is to Amarante’s response to Interrogatory No. 6,
seeking information about her role in approving his transfer to WSPF in 2009 and her
awareness of his suicidal thoughts and use of anti-depressants at that time. Amarante
appears to respond thoroughly and completely to the interrogatory. Perhaps Gonzalez is
dissatisfied with her response that she was not involved in the transfer decision, but that
does not serve as a basis for requiring an additional response. If anything, it is grounds to
seek potentially conflicting documentary evidence and/or to notice Amarante’s
Plaintiff also brings a motion to compel an unaltered copy of the Echo Unit Log
from July 5, 2013, and access to all video recordings from the Echo Unit that recorded
the incidents on July 5, 2013, and June 24, 2013. (Mot. to Compel (dkt. #60).) In
response, defendants explain that the redacted unit log provides all of the information
relevant to Gonzalez’s claims and that information concerning other inmates is not only
irrelevant, but its release would implicate the privacy rights of those inmates. The court
agrees with defendants.
Absent some basis for believing the in camera inspection
suggested by Gonzalez would be productive, the court will deny that suggestion as well.
As for access to all video recordings, defendants explain that these recordings do not
In short, defendants have sufficiently responded to Gonzalez’s request, and there
is nothing the court can reasonably order produced on this record. Accordingly, the court
will also deny this second motion to compel.1
In a January 2014 declaration, Gonzalez complains of lack of access to his medical file.
(1/9/14 Declaration (dkt. #25).) To the extent he still has not obtained full access,
plaintiff can still serve a discovery request on defendants requesting a copy of his file.
IV. Motions for Preliminary Injunction
Plaintiff has also filed two motions for preliminary injunction seeking (1) an order
requiring mental health treatment (dkt. #8); and (2) an order “transferring him to a
mental health prison such as [the Wisconsin Resource Center] so that he can receive the
mental health treatment he needs” (dkt. #57). In the screening order, the court required
defendants to respond to the first motion for preliminary injunction, specifically directing
defendants’ attention to the part of the medical record allegedly indicating that Gonzalez
will not be seen for further psychiatric services. (12/23/13 Order (dkt. #21) 8 (citing
dkt. #9-1 at p.1).)
In response to the first motion, defendants argue that there has been no showing
of deliberate indifference. On the contrary, defendants maintain that: (1) Gonzalez does
not have serious mental health issues; and (2) Vickery’s determination that Gonzalez did
not need further psychiatric services was based on his repeated refusal of such services.
With regard to the first argument, defendants appear to conflate a classification as “MH1,” indicating that Gonzalez is properly housed at WSPF, with a finding of no serious
mental health needs under the Eighth Amendment. Gonzalez’s multiple self-harm or
suicide attempts at least suggest otherwise. Still, Gonzalez’s apparent, repeated refusals
to engage in psychiatric treatment undermines any hope of demonstrating defendants’
deliberate indifference to his serious mental health needs, especially in light of Gonzalez’s
medical record showing roughly monthly meetings with the psychiatric services unit
during the period leading up to his lawsuit. (Declaration of Stacey Hoem, Ph.D., Ex. 101
See Pinkston v. Madry, 440 F.3d 879, 892 (7th Cir. 2006) (affirming
judgment in favor of medical personnel on a claim of deliberate indifference where
inmate was the sole cause of delay in treatment); Walker v. Peters, 233 F.3d 494, 500 (7th
Cir. 2000) (holding that prison doctor who withheld HIV medication did not act with
deliberate indifference where inmate refused to take HIV test).
Moreover, Gonzalez’s request for a Madison psychiatrist to evaluate his mental
health under these circumstances suggests more a disagreement with defendants’
diagnosis and recommended course of treatment, then proof of deliberate indifference in
violation of the Eighth Amendment. See Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro,
834 F.2d 326, 346 (3d Cir. 1987) (“[M]ere disagreement as to the proper medical
treatment [does not] support a claim of an [E]ighth [A]mendment violation.”); Snipes v.
DeTella, 95 F.3d 586, 590-91 (7th Cir. 1996) (“Medical decisions that may be
characterized as ‘classic example[s] of matter[s] for medical judgment, such as whether
one course of treatment is preferable to another, are beyond the [Eighth] Amendment’s
purview.”) (internal citation omitted).
On this record, therefore, the court cannot find that Gonzalez has demonstrated a
likelihood of success on the merits. As for the likelihood of irreparable harm, the current
record indicates that defendants are taking reasonable steps to keep Gonzalez safe from
The court will, therefore, deny plaintiff’s pending motions for
preliminary injunction without prejudice.
For a renewed motion to be successful,
plaintiff will need to present evidence that defendants are not meeting their on-going
obligation to address his mental health needs or insure his safety.
V. Motions for Assistance in Recruiting Counsel
Finally, Gonzalez has renewed his request for this court’s assistance in recruiting
pro bono counsel. (Dkt. ##43, 51, 62.) In its order screening his complaint to go
forward, the court explained the standard for granting assistance in recruiting counsel,
and denied Gonzalez’s request without prejudice.
demonstrated that he has made reasonable efforts to find a lawyer on his own and has
been unsuccessful. (12/23/13 Order (dkt. #21) 8 (noting that Gonzalez had submitted
four letters from attorneys who declined to represent him); see also 4/14/14 Mot. for
Assistance in Recruiting Counsel, Exs. (dkt. #51-1) (filing five additional rejection
letters); 6/13/14 Mot. for Assistance in Recruiting Counsel, Exs. (dkt. #62-1) (attaching
seven additional rejection letters).)
The next question is whether Gonzalez meets the legal standard for appointment
of counsel, in the sense that the legal and factual difficulty of the case exceeds his ability
to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654, 655 (7th Cir. 2007). In making this
determination, the court must consider the “litigant’s demonstrated ability -- or inability
-- to meet th[e] demands” of litigation. Id. at 663. In his most recent filings, Gonzalez
posits several reasons for why he is unable to litigate this action: (1) his imprisonment
limits his ability to conduct legal research and conduct an investigation including
questioning of potential witnesses; (2) Spanish is his first language; (3) an attorney would
be better able to question witnesses at trial; and (4) expert medical testimony is needed.
(Mots. for Assistance in Recruiting Counsel (dkt. ##43, 51, 62).)
The initial three reasons are simply insufficient to appoint counsel, at least as this
With respect to his first reason, while prison does limit Gonzalez’s ability to
conduct research and gather evidence in support of his claims, this is true for all prisoners
filing lawsuits in this court, and the court does not have the ability to recruit counsel for
all prisoner plaintiffs. As for his second basis, Gonzalez’s numerous filings to date have
been lucid and well-written. While the court fully credits Gonzalez’s representation that
English is his second language, he appears to have no difficulty in communicating in that
language, at least in the written form.
As for Gonzalez’s third basis, an inability to
prosecute his claim at trial, the court agrees that questioning witnesses and conducting
cross examination may exceed his abilities, but the court need not recruit counsel at this
time to address this concern. If Gonzalez’s claims advance past the summary judgment
stage, the court will reevaluate Gonzalez’s request for trial counsel.
Gonzalez’s final argument -- that the need for a medical expert necessitates
assistance in appointment of counsel -- presents the strongest reason for his request.
Still, the court need not recruit counsel for Gonzalez to obtain an expert opinion.
Gonzalez should make a good faith effort to retain a medical expert. If he is unable to do
so and he can present meaningful proof that defendants are ignoring a serious mental
health condition and/or need for treatment, then the court will evaluate whether
assistance in recruiting expert testimony is required.2
To date, the record demonstrates that defendants made good faith efforts to provide
psychiatric services which, at some point, plaintiff either refused or abused those sessions,
and that Gonzalez does not suffer from a mental health condition would warrant
renewing those services.
Accordingly, the court finds Gonzalez has not, at least at this time, met his burden
of showing that this is one of the extraordinary times where recruitment of counsel is
necessary. His motion will be denied, therefore, without prejudice, subject to
reconsideration when the disputed issues in this case become more distinct and/or
plaintiff’s limitations as an advocate starkly present themselves.
IT IS ORDERED that:
1) Plaintiff Jorge Gonzalez’s motions for assistance in recruiting counsel (dkt.
##43, 51, 62) are DENIED without prejudice;
2) Plaintiff’s motions to compel discovery (dkt. ##50, 60) are DENIED;
3) Plaintiff’s motions for preliminary injunction (dkt. ##8, 57) are DENIED.
Entered this 31st day of July, 2014.
BY THE COURT:
WILLIAM M. CONLEY
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