Carter, Tommie v. Ashton, Sandra et al

Filing 81

ORDER denying 67 Motion for Sanctions; denying 68 Motion for Sanctions; denying 73 Motion to Compel; denying 74 Motion for Assistance in Recruiting Counsel. Signed by District Judge Barbara B. Crabb on 8/4/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TOMMIE CARTER,
ORDER
Plaintiff,
14-cv-399-bbc
v.
SANDRA M. ASHTON,
RYAN P. ARMSON, TRACY R.
KOPFHAMER, MIKE A. MORRISON,
JASEN B. MILLER, JOSEPH W.
CICHONIWICZ, TROY HERMANS,
CRAIG A. TOM and PHILIP J. KERCH,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Several more motions are ready for review in this case in which plaintiff Tommie
Carter is alleging that various prison officials used excessive force against him and refused
to provide him medical care for injuries sustained as a result of that use of force. Dkt. ##
67, 68, 73 and 74. (Plaintiff filed a new motion that the court received on August 3, 2015,
dkt. #80, but I am not addressing that motion because the parties have not finished briefing
it.) Because some of these motions overlap, I will address them by subject matter rather than
by the name of the particular motion. For the reasons discussed below, I am denying all of
plaintiff’s requests.
First, plaintiff says that staff at the “Records Department” are refusing to allow him
to inspect “all incident reports that he request[ed] in his open records request.” Dkt. # 67

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at 1. In his opening brief, plaintiff does not identify the incident reports he has requested
and he does not explain why he wants them. Further, as I explained to plaintiff in previous
orders, my authority in this case is limited to discovery requests to defendants under the
Federal Rules of Civil Procedure and subpoenas to third parties under Fed. R. Civ. P. 45.
Dkt. #65 at 3 (June 11, 2015 order); dkt. #62 at 3 (May 1, 2015 order). I have no
authority to order prison officials to comply with an open records request under state law.
In a reply brief, plaintiff says that he is seeking an incident report and an investigative
report of the Division of Adult Institutions regarding the use of force on February 27, 2013
that gave rise to this case. Dkt. #72. If plaintiff has reason to believe that such reports
exist, he should file a discovery request with defendants to review the reports because it is
likely that defendants would have possession, custody or control of a report fitting that
description. If defendants acknowledge the existence of a report, but refuse to produce it,
then plaintiff can file a motion to compel on that issue.
Second, plaintiff says that defendants failed to attach certain exhibits to discovery
responses, as defendants said they did. In response, defendants say that they provided all
the exhibits identified, but they served plaintiff with same exhibits again anyway.
Accordingly, this aspect of plaintiff’s motions is moot.
Third, plaintiff says that staff on the health services unit “are refusing to allow [him]
to inspect his medical file within the 30 day time line.” Dkt. #67 at 4. However, plaintiff
does not identify the officials responsible for the alleged refusals and he does not explain any
of the surrounding circumstances. Even more important, he does not explain what he needs

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to view in his medical file or why he wants to view it. Particularly because plaintiff has
acknowledged in previous filings that he has had other opportunities to review his medical
record, I decline to require defendants to take additional action without more specific
information from plaintiff.
Fourth, he says that prison officials are not allowing him to use legal loans to make
photocopies of legal documents. This is a more serious allegation, but it seems to be
contradicted by plaintiff’s own attachments to his motions, which include photocopied
documents. In any event, plaintiff does not identify any particular document that he needs
to copy but has been unable to do so.
Fifth, plaintiff says that defendants’ counsel have a letter related to this case sent by
another prisoner. However, plaintiff does not deny defendants’ representation that he did
not file a discovery request for the letter until June 30, 2015, which was only a few days
before plaintiff filed his motion to compel. Dkt. #73. Because defendants had 30 days to
respond to the request, Fed. R. Civ. P. 34(b)(2)(A), plaintiff’s motion was premature. If
defendants still have not responded to his request or they have refused to provide the
requested document, plaintiff may renew his motion to compel.
Sixth, plaintiff says that the assistant for defense counsel is “committing felony crimes
by counterfeiting and forgery[.] [S]he is altering letters so that it appears that the letters
were made and signed by [counsel] when they were not.” Dkt. #67. However, counsel has
explained that his assistant signed the letters in question on his behalf and with his
permission, so there was no “forgery.” Dkt. #69.

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Finally, plaintiff has renewed his motion for assistance in recruiting counsel. Dkt.
#74. This time, plaintiff has complied with the requirement to submit rejection letters from
at least three lawyers. The next question is whether plaintiff has shown that the complexity
of the case exceeds his ability to litigate it. Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir.
2007). In the order denying plaintiff’s previous request for counsel, I noted that the case
was relatively simple because it involved a single incident over a short period of time and
does not necessarily require extensive discovery or expert knowledge. In addition, I noted
that plaintiff is more than capable of being his own advocate, as is demonstrated by the
many motions that he has filed on his own behalf. Dkt. #62 at 5.
In his new motion, plaintiff’s primary argument is that he believes that he is mentally
ill. In support of that argument, he cites a 2013 psychological evaluation regarding his
competency to stand trial. Dkt. #74-1. However, my own review of that evaluation did not
reveal any obvious reasons plaintiff cannot represent himself in this case. Although the
psychologist gave plaintiff a diagnosis of “Personality Disorder NOS with Antisocial and
Narcissistic Features,” I do not see limitations in the evaluation related to plaintiff’s ability
to litigate. The psychologist found that plaintiff had average intellectual ability, id. at 9, and
was capable of understanding the facts of his case, id. at 11.
The psychologist also concluded that plaintiff believed that various government
officials as well as his own attorney were conspiring against him and that he had a tendency
to engage in “self injurious behavior [as] an attempt to control or influence the environment
or individuals in the environment.” Id. at 10. Although these are findings are troubling, at

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this stage of the proceedings, it is not clear how those concerns would prevent plaintiff from
conducting discovery or submitting summary judgment submissions. If plaintiff’s claims
proceed to trial, he is free to renew his motion then. In the meantime, I encourage plaintiff
to refrain from any further acts of self harm and to seek assistance from mental health staff
if he believes he is at risk of harming himself.

ORDER
IT IS ORDERED that plaintiff Tommie Carter’s motions at docket nos. 67, 68, 73
and 74 are DENIED.
Entered this 4th day of August, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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