Nieto, Juan v. Hoffman, M.D., Karen et al

Filing 38

ORDER denying 33 Motion for Protective Order; denying 34 Motion for Assistance in Recruiting Counsel. Signed by District Judge James D. Peterson on 11/30/2017. (jef),(ps)

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

JUAN NIETO,
Plaintiff,
v.
MICHAEL DITTMAN, KARL HOFFMAN,
ISSAC HART, ANN BOATWRIGHT,
CINDY O’DONNELL, KEISHA PERRENOUD,
KAREN ANDERSON, CANDICE WARNER,
MEREDITH MASHAK, KIM CAMPBELL,
DENISE VALERIUS, KATHY WHALEN, and
SALAMULLAH SYED,

OPINION & ORDER
16-cv-163-jdp

Defendants.
Pro se plaintiff Juan Nieto, a state prisoner incarcerated at the Columbia Correctional
Institution (CCI), is proceeding against defendant CCI prison officials on deliberate
indifference and medical malpractice claims. Nieto contends that defendants delayed
diagnosing and treating his broken toe and bone spurs for almost two years, despite knowing
that he was in great pain. In an October 24, 2017 order, I denied Nieto’s motion for assistance
in recruiting counsel, because although he demonstrated that multiple lawyers declined to
represent him in this case, he had not identified what specific tasks he is unable to perform
without counsel, and I was not convinced that the difficulty of the case would exceed his ability
to litigate his claims himself.
Nieto has now renewed his motion for assistance in recruiting counsel. Dkt. 34. He
argues that he needs the assistance of counsel to locate a medical expert to “interpret lab
reports, physician diagnoses, and symptoms suffered.” Id. at 2. Nieto has survived defendants’
summary judgment motion on exhaustion, but the parties may still move for summary

judgment on the merits of Nieto’s claims—the deadline for doing so is December 15. Without
seeing what evidence the parties may submit, it is not yet clear that this case will present
complex medical issues that would benefit from expert review, so the assistance of counsel is
not necessary at this point.
Nieto also explains that he “has a difficult time understanding English,” making it hard
for him to understand the court filings. Id. He argues that he needs the assistance of counsel
during defendants’ planned deposition of him, scheduled for December 5, 2017. He asks in a
filing, which I will construe as a motion for a protective order under Federal Rule of Civil
Procedure 26(c), that defendants depose him through written questions in Spanish and
English. Dkt. 33. I ordered defendants to respond to Nieto’s concerns about his ability to
participate fully in his deposition. Dkt. 35. Defendants have done so; they see no problem with
deposing Nieto in English. Dkt. 36. They point to the declaration of a CCI social worker, who
states that Nieto completed his GED in English and helps other inmates with English/Spanish
translation. She also states that Nieto “speaks English, but can be hard to understand at times”
and that she has “had to explain the meaning of certain words to him on occasion, but . . .
believe[s] that he comprehends.” Dkt. 37, ¶ 6.
I have some doubt about whether Nieto will be able to fully participate in his deposition
because of his difficulty speaking English, but that is a risk defendants bear, not Nieto. It is
not a reason to recruit counsel for Nieto. If Nieto does not fully understand a question asked
during the deposition, he may say so. He need not answer any question he does not fully
understand. I will not order the deposition to be conducted by written questions and responses,
either, because Nieto will have an opportunity under Federal Rule of Civil Procedure 30(e) to
review the written deposition transcript and note any changes to his testimony. If defendants

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find that they are not able to obtain the information that they seek through an oral deposition,
they may obtain a translator or conduct the deposition by written questions.
As I previously explained, should Nieto continue to believe that he is unable to litigate
this lawsuit himself, he should renew his motion for assistance in recruiting counsel and explain
what specific tasks he is unable to perform without counsel.

ORDER
IT IS ORDERED that:
1. Plaintiff Juan Nieto’s motion for a protective order, Dkt. 33, is DENIED.
2. Plaintiff’s motion for assistance in recruiting counsel, Dkt. 34, is DENIED
without prejudice.
Entered November 30, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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