Myles, Samuel v. Gupta, Ravi et al

Filing 101

ORDER denying plaintiff's 77 Motion to Stay the expert witness disclosure deadline; denying plaintiff's 77 , 81 , 86 Motion for Assistance in Recruiting Counsel. Plaintiff Samuel Haywood Myles's in forma pauperis status und er 28 U.S.C. § 1915 is REVOKED. Defendants Ravi Gupta and the United States are directed to construe plaintiff's request for discovery materials and information, dkt. # 98 , as a request for the production of documents pursuant to Fede ral Rule of Civil Procedure 34. Defendants shall respond to these requests within 30 days of the date of this order. The January 8, 2016 dispositive motion deadline is vacated. The parties have until February 19, 2016 to file their dispositive motions. Signed by District Judge Barbara B. Crabb on 1/19/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SAMUEL HAYWOOD MYLES,

OPINION and ORDER

Plaintiff,

14-cv-661-bbc

v.
RAVI GUPTA and the UNITED STATES,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Samuel Haywood Myles, a prisoner incarcerated at Milan Federal
Correctional Institution, is proceeding on claims that defendant Ravi Gupta improperly
prescribed and dispensed hypertension medicine that caused plaintiff to faint and suffer
injuries. Plaintiff contends that defendant Gupta’s improper treatment supports a negligence
claim under the Federal Tort Claims Act and an Eighth Amendment Bivens claim. There are
currently four discrete matters before the court that require attention: (1) plaintiff’s failure
to respond to the court’s December 3, 2015 order to show cause why his in forma pauperis
status should not be revoked on the ground that he has “three strikes” for purposes of 28
U.S.C. § 1915(g); (2) a number of new requests for assistance in recruiting counsel; (3)
plaintiff’s motion to stay the deadline for filing expert witness disclosures; and (4) a motion
requesting various discovery materials and information from defendants. For the reasons set
forth below, I am revoking plaintiff’s in forma pauperis status, denying his requests for
assistance in recruiting counsel, denying his motion to stay the expert witness disclosure

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deadline and denying plaintiff’s motion for discovery materials.

A. Plaintiff’s In Forma Pauperis Status
On December 3, 2015, I entered an order requiring plaintiff to show cause why his
in forma pauperis status should not be revoked on the ground that he has accumulated more
than three strikes. Dkt. #88. I explained in that order that, under Section 1915(g), a
prisoner cannot proceed in forma pauperis if he has “on 3 or more prior occasions, . . .
brought an action or appeal in a court of the United States that was dismissed on the
grounds that it was frivolous, malicious, or fail[ed] to state a claim upon which relief may
be granted[.]” 28 U.S.C. 1915(g). I further explained to plaintiff that it had come to the
court’s attention that he filed at least eleven pro se lawsuits while incarcerated in various
facilities and that five of these suits appear to have been dismissed on the ground that they
were frivolous or failed to state a claim upon which relief could be granted. After identifying
each of these five suits and explaining the apparent grounds for the courts’ dismissal in each
case, I instructed plaintiff to show cause why his in forma pauperis status should not be
revoked.
Rather than attempt to maintain his in forma pauperis status, plaintiff chose to pay
the outstanding balance of the $400 filing fee. Although plaintiff’s payment of the filing fee
allows his lawsuit to proceed, his failure to explain why the cases I identified should not be
construed as “strikes” for purposes of Section 1915(g) requires that I revoke his in forma
pauperis status under 28 U.S.C. § 1915.

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B. Motion for Assistance with Recruitment of Counsel
The next matter that requires the court’s attention is plaintiff’s most recent requests
for assistance with the recruitment of counsel. Dkt. ##77, 81 and 86. As an initial matter,
it is unclear whether plaintiff is entitled to assistance with the recruitment of counsel in light
of the fact that he is not proceeding in forma pauperis under 28 U.S.C. § 1915. Although
the Court of Appeals for the Seventh Circuit has not addressed the issue, at least one other
circuit’s court of appeals has held that a district court cannot assist a pro se prisoner with the
recruitment of counsel under 28 U.S.C. § 1915(e)(1) if the prisoner has three strikes.
Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011) (“Because [plaintiff] was barred
from proceeding under § 1915, he was not entitled to any of the benefits that accrue to one
who proceeds in forma pauperis. Accordingly, we hold that [plaintiff] was statutorily
precluded from obtaining counsel pursuant to § 1915(e)(1).”).
Even if I were to conclude that I had the authority to appoint plaintiff counsel under
§ 1915(e)(1), I would still deny plaintiff’s requests because I am not convinced that plaintiff
is incapable of continuing to represent himself, at least at this stage of the case.
Before a court will assist a pro se prisoner with the recruitment of counsel, the
prisoner must satisfy three requirements. First, he must demonstrate that he is indigent and
unable to afford counsel. 28 U.S.C. § 1915(e)(1). Second, he must demonstrate that he has
made reasonable efforts to find a lawyer on his own and either was unsuccessful or was
prevented from making such efforts. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

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Third, he must demonstrate that, given the complexity of the case and the issues involved,
he is incapable of continuing to represent himself. Id. at 654-55. In past orders denying
plaintiff’s earlier requests for assistance with the recruitment of counsel, I found that
plaintiff is indigent and has made a good faith effort to find a lawyer on his own. Thus, the
sole issue that needs to be addressed is whether the complexity of plaintiff’s claims outweigh
his ability to litigate them on his own. Pruitt, 503 F.3d at 655.
I begin by noting that plaintiff is a seasoned pro se litigant. As I discussed in the
court’s December 3, 2015 order to show cause, plaintiff has filed at least eleven civil
lawsuits, as well as a number of appeals, in various federal district and appellate courts.
Although plaintiff’s suits have rarely been successful, it is reasonable to infer that plaintiff
has developed at least a basic understanding of how civil litigation proceeds in federal court
and how the rules of civil procedure operate during the pretrial phase of a lawsuit. Pruitt,
503 F.3d at 655 (identifying “litigation experience” as a relevant factor when considering
whether to assist with the recruitment of counsel). Further, I have not had any trouble
understanding plaintiff’s arguments, which have consistently focused on the relevant legal
and factual issues in this case.
Turning to the specific argument set forth in plaintiff’s various requests, the only
ground plaintiff raises for why he should be appointed a lawyer is that his case involves
“complex” medical issues that require expert witness testimony. This argument is not
convincing because it is unclear at this stage of the case what medical issues are in dispute.
Discovery is ongoing and the parties have yet to file dispositive motions. Accordingly, I will

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defer assisting plaintiff with the recruitment of counsel until after the parties have filed their
dispositive motions and I have determined that the medical issues in this case are both
material to plaintiff’s claims and too complex for plaintiff to navigate without the assistance
of counsel. In other words, I will wait until after dispositive motions are filed and the issues
in this case are clearer to decide whether “among [the] sea of people lacking counsel,”
plaintiff is one of those who need counsel the most. Olson v. Morgan, 750 F.3d 708, 711
(7th Cir. 2014).

C. Motion to Stay Deadline for Filing Expert Witness Disclosures
On August 31, 2015, plaintiff filed a motion to stay the court’s September 30, 2015
deadline for filing his expert witness disclosures until after he was able to obtain an attorney.
Dkt. #74. On September 8, 2015, I issued an order denying his motion on the ground that
plaintiff’s inability to find a lawyer to represent him was not a proper ground for postponing
the expert disclosure deadline, particularly where plaintiff failed to describe the steps he had
taken to find counsel or how much additional time he needed to disclose his expert’s report.
Dkt. #75.
On September 21, 2015, plaintiff filed another motion to stay the court’s expert
disclosure deadline. This motion does not address the problems identified in my September
8, 2015 order denying the nearly identical motion plaintiff had filed in August. Instead of
identifying how much additional time he needs or what efforts he has made to retain a
lawyer or an expert, plaintiff simply reiterates the fact that he needs an unspecified amount

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of additional time to disclose his expert witness report. I am again denying plaintiff’s request
that I stay this deadline.

D. Motion Requesting Discovery Materials and Information
Finally, plaintiff recently filed a request for various discovery materials and
information. As the court’s preliminary pretrial conference order makes clear, plaintiff need
not file discovery materials or requests with the court. Dkt. #27 at 8-10. For the sake of
efficiency, I will enter an order directing defendants to construe plaintiff’s discovery filing
as a request for the production of documents pursuant to Federal Rule of Civil Procedure 34.
In the future, if plaintiff believes that defendants have certain materials or information
relevant to his claims, plaintiff should request such materials from defendants directly. If
defendants refuse to provide plaintiff the materials or information he is seeking, plaintiff
may then file a “motion to compel” under Federal Rule of Civil Procedure 37, which is a
motion that asks the court for an order requiring defendants to provide him the information
he is seeking. Plaintiff is further advised to read the preliminary pretrial conference order
entered in this case by magistrate judge Stephen Crocker. Dkt. #27. This order gives
plaintiff useful information regarding how he can obtain discovery from defendants.

ORDER
IT IS ORDERED that
1. Plaintiff Samuel Haywood Myles’s in forma pauperis status under 28 U.S.C. §

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1915 is REVOKED.
2. Plaintiff’s requests for assistance with the recruitment of counsel, dkts. ##77, 81
and #86, are DENIED without prejudice to his refiling them after the deadline for filing
dispositive motions has passed.
3. Plaintiff’s motion to stay the expert witness disclosure deadline, dkt. #77, is
DENIED.
4. Defendants Ravi Gupta and the United States are directed to construe plaintiff’s
request for discovery materials and information, dkt. #98, as a request for the production
of documents pursuant to Federal Rule of Civil Procedure 34. Defendants shall respond to
these requests within 30 days of the date of this order. Plaintiff is directed to serve future
requests for the production of documents and information on defendants directly.
5. The January 8, 2016 dispositive motion deadline is vacated. The parties have until
February 19, 2016 to file their dispositive motions. Responses to dispositive motions are
due within thirty days thereafter. Replies in support of dispositive motions are due within
10 days after the deadline for filing responses. All other deadlines set forth in the court’s
preliminary pretrial conference order remain in effect.
Entered this 19th day of January, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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