Myles, Samuel v. Gupta, Ravi et al

Filing 30

ORDER denying without prejudice 20 Motion for Assistance in Recruiting Counsel; denying as unnecessary 22 Motion to Amend Complaint; denying 29 "discovery request" and "subpoena d.t." Defendant United States is SUBSTITUTED for defendant Ravi Gupta for the purposes of the Federal Tort Claims Act claim only. Signed by District Judge Barbara B. Crabb on 4/3/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SAMUEL HAYWOOD MYLES,
ORDER
Plaintiff,
14-cv-661-bbc
v.
MEDICAL STAFF DOCTOR RAVI GUPTA and
UNKNOWN NAME MEDICAL STAFF PHARMACIST,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Samuel Haywood Myles is proceeding on claims that defendants Ravi Gupta
and a Jane Doe pharmacist at the Federal Correctional Institution in Oxford, Wisconsin
violated the Eighth Amendment and were negligent when they prescribed hypertension
medicine for plaintiff that caused him to faint and break his ankle. In his original complaint,
plaintiff did not name the United States as a defendant. Plaintiff cannot proceed on a
negligence claim under the Federal Tort Claims Act against defendants Gupta and the Doe
pharmacist, 28 U.S.C. § 2679(b), but, “[u]pon certification by the Attorney General that the
defendant employee was acting within the scope of his office or employment[,] . . . the
United States shall be substituted as the party defendant.” § 2679(d)(1). Plaintiff has filed
a motion to amend his complaint to add the United States as a party, dkt. ##22, 25, but
the motion is not necessary because the Attorney General has certified that defendant Gupta
acted within the scope of her employment in this case, dkt. #17. Accordingly, the United

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States will be substituted for defendant Gupta with respect to the Federal Tort Claims Act
claim and plaintiff’s motion will be denied as unnecessary.
Plaintiff also asks the court to appoint counsel for him, which I construe as a motion
for assistance in recruiting counsel. Dkt. ##20, 24. Before a district court can consider a
plaintiff’s request for counsel, it must first find that the plaintiff has made reasonable efforts
to find a lawyer on his own and was unsuccessful or that the plaintiff was prevented from
making such efforts. Jackson v. County of McLean, 953 F.2d 1070 (7th Cir. 1992). To
prove that he has made reasonable efforts to find a lawyer, plaintiff must give the court
copies of letters from at least three lawyers who denied his requests for representation.
Because plaintiff has not provided the court any evidence of his efforts to find counsel on
his own, his motion will be denied at this time.
Finally, plaintiff has filed a motion for a “discovery request” in which he asks for the
identity of the pharmacist defendant and a “subpoena d.t.” in which he asks for medical
records from defendants. Dkt. #29. Plaintiff does not explain why he requires the court’s
assistance, so his motion will be denied. The pretrial conference order, dkt. #27, directs
plaintiff to send all discovery requests to defendants directly. He need not file them with
the court. Further, plaintiff must certify that he has made a good faith effort to resolve any
discovery disputes with defendants before filing a motion to compel discovery with the court.
Fed. R. Civ. P. 37(a)(1).

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ORDER
IT IS ORDERED that
1. Defendant United States is SUBSTITUTED for defendant Ravi Gupta for the
purposes of the Federal Tort Claims Act claim only.
2. Plaintiff Samuel Haywood Myles’s motion to amend his complaint, dkt. ##22,
25, is DENIED as unnecessary.
3. Plaintiff’s motion for assistance in recruiting counsel, dkt. ##20, 24, is DENIED
without prejudice.
4. Plaintiff’s motion for a “discovery request” and “subpoena d.t.,” dkt. #29, is
DENIED.
Entered this 3d day of April, 2015.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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