Stewart, Steven v. Wall, Edward et al

Filing 196

ORDER granting state defendant's 189 motion to substitute proposed findings of fact; granting in part and denying in part defendant Rose Drafahl's 190 motion to compel and extend deadline for filing summary judgment; denying plaintiff&# 039;s 193 motion to compel and renewed motion for reconsideration of assistance recruiting counsel. State defendants should file the final version of their proposed findings of fact as a separate docket entry. Defendant Rose Drafahl may have until April 29, 2016, to move for summary judgment. Plaintiff Steven Stewart may have until May 30, 2016, to respond, and defendant may have until June 3, 2016, to reply. Signed by District Judge James D. Peterson on 4/19/2016. (jef),(ps) Modified docket text on 4/19/2016 (jef).

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

STEVEN D. STEWART,

v.

Plaintiff,

DR. BURTON COX, JR., H.S.U. MARY MILLER,
NURSE JOLINDA WATERMAN,
NURSE SHERYL KINYON, DR. DALIA SULIENE,
DR. BRAD MARTIN, DR. KARL HOFFMAN,
H.S.U. MANAGER KAREN ANDERSON,
NURSE NATALIE NEWMAN,
NURSE TRISHA ANDERSON,
NURSE KIM CAMPBELL,
NURSE MELISSA THORNE,
NURSE ROSE DRAFAHL,
ANN PETERS-ANDERSON,
NURSE PHILLIP KERCH,
NURSE DAVID SPANNAGEL, and
SGT. RICHARD MATTI,

ORDER
14-cv-665-jdp

Defendants.

Pro se prisoner Steven Stewart is proceeding against defendants with Eighth
Amendment claims for inadequate medical treatment, First Amendment claims for
retaliation, and state law claims for medical malpractice. Except for defendant Rose Drafahl,
all defendants have moved for summary judgment and their motions are now under
advisement. But the parties have four other matters that require attention.
First, the defendants who are represented by the Wisconsin Department of Justice
have moved to substitute their proposed findings of fact. Dkt. 189. They indicate that “[d]ue
to a clerical error, the version of Defendants’ Proposed Findings of Fact (DPFOF) that was
filed with the Court was a prior non-finalized draft that had questions or incomplete
statements instead of complete findings of fact.” Id. ¶ 2. These defendants seek leave to file

the finalized version of their proposed findings of fact. They contend that they served
plaintiff with the finalized version and there will be no prejudice to plaintiff if I grant their
motion. Because plaintiff does not dispute this point, I will grant defendants’ motion.
Defendants should file the finalized version of their proposed findings of fact as a separate
docket entry.
This is the third time that the DOJ has pleaded careless or clerical error in this case. I
have already cautioned the DOJ that I would not accept such excuses as defenses to otherwise
well-grounded discovery motions. Dkt. 154, at 3 n.1. Defendants’ current motion does not
arise in the context of discovery, and plaintiff will not suffer any prejudice if I allow
defendants to replace their proposed findings of fact with the correct version. Still, the DOJ’s
careless mistakes have persisted despite my warnings. The next time that the DOJ raises
careless or clerical error to justify its actions in this case (or the next time that I find careless
or clerical error in this case), I will impose an appropriate sanction, even if I ultimately accept
the justification or overlook the error.
The second matter is defendant Drafahl’s motion to compel discovery and extend her
deadline for moving for summary judgment. Dkt. 190. According to Drafahl, plaintiff never
responded to discovery requests that she served in May 2015. Drafahl violated this court’s
procedures for pro se prisoner cases by serving these requests before the preliminary pretrial
conference, so I extended plaintiff’s deadline to respond to them. Dkt. 39, at 3-4. Drafahl
reminded plaintiff of the extended deadline in June 2015, but plaintiff never responded. But
then Drafahl let the matter languish. Drafahl finally asked plaintiff for the missing discovery
in March 2016, and plaintiff still did not respond. Drafahl moved to compel plaintiff’s
responses on April 12, 2016, and she also asked me to extend her deadline for filing a motion

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for summary judgment. The next day, the court received plaintiff’s responses to Drafahl’s
discovery requests (they were dated April 3, 2016). Dkt. 194. Because it appears that Drafahl
now has the discovery that she requested, I will deny her motion to compel.
This leaves Drafahl’s request for more time in which to move for summary judgment.
Dispositive motions were due on February 2, 2016, and all defendants besides Drafahl moved
for summary judgment. See Dkt. 119 and Dkt. 124. The parties finished briefing these
motions on March 25, 2016. Drafahl has not offered any excuse for letting plaintiff’s missing
discovery responses sit for eight months before seeking relief, nor has she explained why she did
not request additional time to move for summary judgment before the deadline for dispositive
motions, or at least before the parties finished briefing them. Drafahl should have addressed
these issues much earlier in the case.
Plaintiff opposes extending Drafahl’s deadline for filing a motion for summary
judgment, contending that it will prejudice his case. Dkt. 195. But the “prejudice” that
plaintiff identifies is really just that he does not want to give up the advantageous position
that he has over Drafahl. 1 I would likely deny Drafahl’s motion if it indeed caused plaintiff
prejudice. But it does not. The purpose of summary judgment is to determine whether the
parties have disputes of fact that a jury must resolve. It would be a waste of time to present
plaintiff’s claims against Drafahl to a jury if there are no material factual disputes. I will
therefore extend Drafahl’s deadline for filing a motion for summary judgment. But I will give
her a very short briefing schedule to avoid delaying this case any further—which would cause

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Plaintiff’s response to Drafahl’s motion asks me to enter default judgment against Drafahl.
Dkt. 195. A default judgment is not appropriate in this case because Drafahl has appeared
and is defending herself. Contrary to plaintiff’s assumption, he does not automatically win
his case simply because Drafahl did not timely move for summary judgment.

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plaintiff prejudice. Drafahl may have until April 29, 2016, to move for summary judgment.
Plaintiff may have until May 30, 2016, to file a response, and Drafahl may have until June 3,
2016, to file a reply.
The third matter is plaintiff’s motion to compel, which relates to the state defendants’
responses to plaintiff’s request for production of documents. Plaintiff sought: (1) the
personnel files for each defendant; (2) “all evidence pertaining to expert witnesses who may
be call[ed] for trial, Evidence under Rule 702, 703, 704, 705”; and (3) all prescribers’ orders
and medical records. 2 Dkt. 193-1, at 1-2. Defendants objected to each request. They
responded that plaintiff’s request for personnel records was overly broad and not likely to
lead to the discovery of relevant evidence, although they affirmatively indicated that
defendants had not been disciplined for their conduct in plaintiff’s case or for treatment of
other inmates. As for expert witnesses, defendants stated that they would disclose their expert
witness materials in accordance with the court’s pretrial conference order. Defendants also
indicated that plaintiff could contact health services to inspect and copy his medical records,
or he could refer to an exhibit attached to defendants’ motion for summary judgment.
Defendants’ responses were proper, and I will deny plaintiff’s motion to compel. But I
will expand on one point. In an earlier order relating to discovery, I explained that plaintiff
could not object to requests for documents on the grounds that they were available elsewhere.
Dkt. 107, at 11-13. The request at issue was a now-dismissed defendant’s request for the
medical records that plaintiff contended supported his claims. I explained that defendants
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Plaintiff also included in his request the following statement: “This case my constitutional
rights are being denied and trampled upon by C.C.I.’s R. Pafford who has lied in the record
and she has refuse to give discovery. Keep in mind this effects [sic] summary judgment.”
Dkt. 193-1, at 2. Defendants properly objected to this statement because it was not in the
form of a discovery request. Id.

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were entitled to have plaintiff identify the specific documents that he intended to use to
support his claims against them, and so plaintiff could not simply state that defendants
already had access to the documents that they had requested. Id. at 13. Plaintiff now asks me
to apply the same rule to his request for his medical records. But this situation is different.
Plaintiff is not asking defendants to identify specific documents that they will use; he is just
requesting a copy of his medical records. Defendants have adequately responded to this
request by explaining how plaintiff can obtain copies of these records.
The fourth and final matter addressed here is plaintiff’s renewed request for counsel. I
have already denied several such requests in this case, see, e.g., Dkt. 73 and Dkt. 106, and I
will do so again because nothing has changed since plaintiff’s last request. In my most recent
order on the issue of recruiting counsel, I explained that plaintiff has competently litigated
this case so far, overcoming motions for summary judgment on exhaustion grounds and
adequately navigating the discovery process by filing (and responding to) motions to compel.
Dkt. 154, at 3. I also explained that this case essentially involves factual disputes, which
plaintiff is capable of addressing. Id. Finally, I concluded that I would deny plaintiff’s request
for counsel without prejudice to him renewing his request if the case proceeded past
defendants’ motions for summary judgment. Id. The status of the case has not changed since
my earlier order. Plaintiff’s request for assistance recruiting counsel is denied. Until this case
advances past summary judgment, I will summarily deny any future request from plaintiff for
assistance recruiting counsel.

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ORDER
IT IS ORDERED that:
1. The state defendants’ motion to substitute their proposed findings of fact,
Dkt. 189, is GRANTED. Defendants should file the final version of their proposed
findings of fact as a separate docket entry.
2. Defendant Rose Drafahl’s motion to compel discovery and extend deadline for
filing summary judgment motions, Dkt. 190, is GRANTED in part and DENIED
in part, as explained in this order. Defendant may have until April 29, 2016, to
move for summary judgment. Plaintiff Steven Stewart may have until May 30,
2016, to respond, and defendant may have until June 3, 2016, to reply.
3. Plaintiff’s motion to compel and renewed motion for reconsideration of assistance
recruiting counsel, Dkt. 193, is DENIED.
Entered April 19, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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