Lewis, Edward v. Stenz, Leon et al

Filing 124

ORDER denying plaintiff Edward Lewis's 120 motion for assistance in recruiting counsel. Plaintiff has until April 20, 2018, to return to defendants the modified form consenting to disclosure of his medical records from October 26, 2001, to June 18, 2014. Signed by District Judge William M. Conley on 4/6/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
EDWARD MAX LEWIS,
Plaintiff,

OPINION AND ORDER

v.
14-cv-446-wmc
GEORGE STAMPER, et al.,
Defendants.
In this pro se civil rights lawsuit, plaintiff Edward Max Lewis proceeds on claims that
during his stay at the Forest County Jail from October 26, 2003, to June 28, 2004, the
defendants violated his constitutional, statutory and state common law rights by failing to
provide him with adequate medical and mental health treatment and subjecting him to
inhumane conditions of confinement. On November 21, 2017, Magistrate Judge Stephen
Crocker issued an order granting defendants’ motion to compel. In that order, Judge
Crocker directed Lewis to return a modified form to defendants that consented to
disclosure of his medical records from October 26, 2001, to June 18, 2014, by December
4, 2017, and warned Lewis as follows:
This court does not compel parties to disclose confidential medical or
psychiatric information if they choose not to. But a failure to disclose this
information almost certainly will result in the court either dismissing his
medical-care related claims, precluding him from asserting a tolling defense,
or both. This is because it is not fair to defendants for Lewis to make the
sort of claims that he has made here without giving the defendants access to
the information that underlies these claims so that the defendants may
investigate and defend against these clams. Lewis may choose how he wishes
to proceed, but he has to choose; he cannot have it both ways.
(Dkt. #104.) Since Lewis failed to comply with that order, defendants have filed motions
for summary judgment and to dismiss for failure to prosecute. (Dkt. ##107, 114.) Lewis

failed to respond to either opposition deadline, and instead, on January 22, 2018, Lewis
submitted a letter to the court requesting assistance in recruiting counsel. (Dkt. #120.)
For the reasons that follow, the court is denying Lewis’s request for counsel, but will give
Lewis one last chance to comply with the November 21, 2017, order before dismissing this
case pursuant to Federal Rule of Civil Procedure 41(b).

OPINION
I.

Request for assistance in recruiting counsel
As an initial matter, Lewis’s request for assistance in recruiting counsel will be

denied. The starting point for all such requests is that there is no general right to counsel
in civil cases. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). Rather, courts have
discretion to grant motions for assistance in recruiting counsel where a party meets several
requirements, Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010), and this is simply
not one of those relatively few cases in which the legal and factual complexities of the case
exceeds the plaintiff’s ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th
Cir. 2007). Indeed, the operative question is not whether a lawyer will do a better job than
he can -- that is almost always the case -- but rather whether practically speaking Lewis is
unable to represent himself. The answer is no for the reasons that follow.
Lewis has been litigating this case since 2014 and has demonstrated success, both
procedurally and substantively, having won an appeal of this court’s initial dismissal of his
case. Lewis’s filings since then continue to illustrate his ability to write and think clearly,
and the same is true with respect to his discovery exchanges with defendants. It is only

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now, when the court has informed him that he needs to sign the medical release form and
respond to defendants’ motions to avoid dismissal, that Lewis has been less engaged, but
the record does not suggest that he is incapable of complying. Lewis represents that he
was arrested in October and November, released shortly thereafter, and then admitted to
a mental hospital in November and December. Lewis further states that because his
probation officer placed him in a shelter and he is unable to get his mail and legal materials,
he does not have access to the information he needs to litigate this case. Lewis adds that
he is willing to sign a medical release form if he receives one, but he thought he was waiting
for one.
These representations appear to be an inappropriate attempt to delay this lawsuit
further. For one, Lewis’s statement that he was waiting for the medical release form is
contradicted by the discovery materials filed in this case. In fact, when Lewis responded
to defendants’ discovery requests, he objected specifically to defendants’ request that he
sign the release form, not on the ground that he did not receive the form, but because the
“information they seek is in excess to any issue complained of in the complaint and
contains other issues not relevant to the issues complained of.” (Pl.’s Discovery Resp. (dkt.
#76-2) at 6.) Moreover, even assuming that Lewis lost the form, given that he has the
ability to contact the court, he likewise has the ability contact defendants, and thus should
have requested another copy of the medical release form. As such, the court is unconvinced
that Lewis is incapable of complying with the court’s order and his request for counsel is
denied.

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II.

Defendants’ motions to dismiss or for summary judgment
Turning to defendants’ motions, they seek judgment on two grounds: statute of

limitations and failure to prosecute.
A. Statute of limitations
First defendants seek summary judgment because, on this record, Lewis’s claims are
untimely as a matter of law. Specifically, they point out that Lewis’s claims arose during
his time in the Forest County Jail between October 26, 2003, and June 28, 2004, but he
did not file this lawsuit until June 18, 2014, well beyond the six-year statute of limitations
related to his claims. Kennedy v. Huibregtse, 831 F.3d 441, 442 (7th Cir. 2016) (“[T]he
statute of limitations for section 1983 claims in Wisconsin is six years, ….”). Defendants’
position is that, since Lewis appears to be seeking to argue that his statute of limitations
was tolled due to a mental incapacity, Lewis’s refusal to permit defendants’ access to the
materials relevant to this defense precludes him from asserting it.
As previously noted, Judge Crocker warned Lewis that if he did not turn over the
medical release authorization form by December 4, 2017, the court may preclude him from
asserting a tolling defense. Unfortunately for Lewis, that scenario appears to have come to
fruition. To date -- four months after the court-imposed deadline to sign the release form
-- Lewis has made no effort to comply with defendants’ request. That said, the court will
take Lewis at his word that he was separated from his legal materials and that he now is
willing to sign the release form if he receives one. Therefore, the court will give him one
more chance to comply with the November 21 order by giving him a small window of time
-- until April 20, 2018 -- to return the modified authorization form to defendants. To

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ensure that Lewis has access to the necessary materials to return that authorization, copies
of docket entries #76-1, which includes the authorization form, and #104, Judge Crocker’s
order, will be mailed to him along with this order. Failure to comply with this order will
result in the court sanctioning Lewis by precluding him from arguing that the six-year
statute of limitations was tolled because he was incapacitated.

See Fed. R. Civ. P.

37(b)(2)(A)(ii) (permitting court to prohibit a “disobedient party from supporting or
opposing designated claims or defense”).

B. Failure to comply with the court’s order
Second, defendants seek dismissal due to Lewis’s refusal to either disclose his
physician list or sign a medical release authorization form by December 4, 2017, as
required by the November 21, 2017, order. Under Rule 41(b), a defendant may move for
dismissal of an action with prejudice if a plaintiff fails to “prosecute or to comply with
these rules or any order of the court.” Fed. R. Civ. P. 41(b). Before a district court imposes
a Rule 41(b) dismissal, it should consider: “1) whether the wrongdoer (or [his] counsel)
received ‘due warning’ that such a sanction was a possibility; 2) the frequency and
magnitude of the wrongdoer’s failure to comply with deadlines and other court orders; 3)
the efficacy of less severe sanctions; 4) whether the misconduct prejudiced the other party
or other litigants on the court's docket; and 5) the likely merits of the wrongdoer’s case.”
Graham v. Schomaker, 215 F.3d 1329 (7th Cir. 2000) (citing Ball v. City of Chi., 2 F.3d 752,
755 (7th Cir. 1993)).

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While not every factor supports dismissal at this point, it is a very close call. First,
the November 21, 2017, order warned Lewis that his claims and tolling defense would be
subject to dismissal if he failed to comply with the order.

Second, Lewis’s delay is

significant: defendants had been attempting to obtain Lewis’s discovery responses since
May of 2017, but Lewis still has not complied, nor does his letter indicate that he has even
begun preparing an opposition to defendants’ motions or that he needs an extension of
time within which he may respond. Moreover, the magnitude of Lewis’s failure to comply
is quite significant at this point: his deliberate indifference claim hinges on the medical
care he received in 2003 and 2004 and his tolling defense relies on his mental state since
then, but he nonetheless refuses to provide defendants with discovery materials directly
related to those issues. The third factor militates slightly against dismissal because, while
the court has granted defendants’ motion to compel, this court has not imposed less severe
sanctions previously.

The fourth factor weighs heavily in favor of dismissal because

defendants, who have been attempting to reach the merits of this lawsuit since May of
2017, are significantly prejudiced by Lewis’s delay because they have not been able to
develop the factual record related to Lewis’s physical and mental health necessary to defend
themselves. Finally, given that the merits of Lewis’s case depend in large part on his
medical records, this factor is neutral. Considering all of these factors together, the court
will not dismiss this lawsuit at this point, but should Lewis fail to meet the April 20
deadline, it will grant defendants’ motion to dismiss pursuant to Rule 41(b).

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ORDER
IT IS ORDERED that:
1. Plaintiff Edward Lewis’s motion for assistance in recruiting counsel (dkt. #120)
is DENIED.
2. Plaintiff has until April 20, 2018, to return to defendants the modified
form consenting to disclosure of his medical records from October 26,
2001, to June 18, 2014. Failure to meet this deadline will result in the
court (1) precluding plaintiff from asserting the defense that his statute of
limitations was tolled and (2) dismissing plaintiff’s medical and mental
health care claims.

Entered this 6th day of April, 2018.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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