Lindsey, Leighton v. Cockcroft, Michael et al

Filing 75

ORDER denying 67 Motion for a subpoena duces tecum. Plaintiff's motion for an extension of time to respond to defendant Michael Cockroft's motion for summary judgment, dkt. 74 , is GRANTED IN PART and DENIED IN PART. Plaintiff may ha ve until December 8, 2014 to file his response. Plaintiff may have until December 4, 2014 to show cause why is motions for a subpoena duces tecum and for an extension of time should be sealed. If plaintiff fails to respond by that date or fails to show cause, his filings will be unsealed. Signed by Magistrate Judge Stephen L. Crocker on 11/19/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LEIGHTON D. LINDSEY,
ORDER
Plaintiff,
v.

14-cv-27-bbc

MICHAEL COCKROFT,
Defendant.

In this civil lawsuit alleging use of excessive force, pro se plaintiff Leighton D. Lindsey has
moved for issuance of a subpoena duces tecum under Fed. R. Civ. P. 45 to obtain documents
from the John Doe proceeding that plaintiff initiated in the Circuit Court for Grant County.
Dkt. 67. Plaintiff asks the court to seal his motion, id., and asks for an extension time to
respond to defendant Michael Cockroft’s motion for summary judgment, dkt. 74. Plaintiff has
not shown that he is entitled to any of the relief he requests.
In support of his subpoena request, plaintiff says that he wants Detective Richard Place’s
incident report dated May 20, 2013 and “any and all other investigatory documents related to
the investigation of John Doe case no. 13-jd-6.” Plaintiff does not proffer any information about
why he believes that these documents exist; indeed, plaintiff has provided no basis to surmise
his John Doe request proceeded beyond the initial stages. See In re John Doe Petition, 2010 WI
App 142, 329 Wis. 2d 724, 731-32( under Wisconsin’s John Doe statute, Wis. Stat. § 968.26,
judges may decline to subpoena witnesses or documents if they believe the complaint is without
merit). Further, if a presiding judge decides to keep a John Doe proceeding secret, then “the
record of the proceeding and the testimony taken shall not be open to inspection by anyone
except the district attorney . . . .” Wis. Stat. § 968.26(3). Plaintiff does not say whether his
proceeding was secret, but he does say that the state court has denied his request for the

document. One could infer from the fact of a denial either that the requested documents are
sealed, or that they do not exist at all.
Perhaps this bears further exploration in this case, but not at this juncture. Even if
plaintiff had provided a basis for believing that these documents exist and that they contain
statements from defendant or defendant’s associates, plaintiff does not need such documents
at this stage in the proceedings. At summary judgment, plaintiff does not require admissions
from defendant in order to create a legitimate dispute of fact on his excessive force claim.
Therefore, plaintiff is able respond to the summary judgment motion without the documents.
His response deadline will be extended by one week only.
Finally, plaintiff asks that his motions for the subpoena duces tecum and for an extension
of time be sealed and that the court issue a protective order because plaintiff is concerned that
the assistant attorney general on this case will obtain the documents from his John Doe
proceeding before he does and that officials in the Grant County circuit court will alter the
documents. Neither of these reasons is persuasive. First, if the documents exist and contain
discoverable information, then they must be produced for both parties, so it is immaterial
whether defendant finds them first. Second, plaintiff provides no reason for why he believes
Grant County circuit court officials might alter these documents. However, I note that John
Doe proceedings are often kept secret pursuant to Wis. Stat. § 971.23. Therefore, out of an
abundance of caution, I will give plaintiff an opportunity to show cause why his filings should
be kept under seal. If plaintiff fails to do so, then his motions and this order will be unsealed.

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ORDER
It is ORDERED that
1. Plaintiff Leighton D. Lindsey’s motion for a subpoena duces tecum, dkt. 67, is
DENIED.
2. Plaintiff’s motion for an extension of time to respond to defendant Michael Cockroft’s
motion for summary judgment, dkt. 74, is GRANTED IN PART and DENIED IN PART:
Plaintiff may have until December 8, 2014 to file his response.
3. Plaintiff may have until December 4, 2014 to show cause why is motions for a
subpoena duces tecum and for an extension of time should be sealed. If plaintiff fails to respond
by that date or fails to show cause, his filings will be unsealed.

Entered this 19th day of November, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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