Mitchell, Roy v. Dane County Sheriff Department et al

Filing 232

ORDER denying plaintiff's 148 , 216 Motions for Assistance in Recruiting Counsel; denying plaintiff's 160 , 178 Motions to Compel; and denying plaintiff's 223 Motion to postpone deposition pending the court's ruling on motion for assistance recruiting counsel. Defendants have until September 1, 2017 to notify the court whether they wish to pursue their exhaustion defense further. Signed by Magistrate Judge Stephen L. Crocker on 8/24/2017. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROY MITCHELL,
Plaintiff,
v.
DANE COUNTY SHERIFF
DEPARTMENT, et al.

OPINION & ORDER
Case No. 16-cv-352-wmc

Defendants.

Plaintiff Roy Mitchell is proceeding in this action under 42 U.S.C. § 1983 on
Fourteenth Amendment claims that various Dane County officials, subjected her to conditions
of confinement so dangerous that they violated her due process rights. In particular, Mitchell
claims that she was housed in a section of the Dane County Jail that exposed her various
hazards, including sewer flies, asbestos, lead, and black mold.
There are several pending motions that I am addressing in this order: defendants’
motion for partial summary judgment on exhaustion grounds (dkt. 141); Mitchell’s two
motions to compel (dkts. 160, 178); Mitchell’s two motions for assistance in recruiting counsel
(dkts. 148, 216); and Mitchell’s motion to postpone her August 29 deposition until the court
recruits counsel for her (dkt. 223). For the following reasons, I am denying Mitchell’s motions
and directing defendants to inform the court whether they wish to withdraw their motion.

Exhaustion of Administrative Remedies (dkt. 141)
Defendants filed a motion for partial summary judgment, seeking dismissal of Mitchell’s
claims related to asbestos, lead paint and black mold on the ground that she did not properly
exhaust those claims. They concede that Mitchell exhausted her claim about sewer flies.

While I will not resolve this motion, I am ordering the defendants to notify the court
whether they wish to pursue it in light of the fact that Mitchell is no longer confined in jail.
Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” Generally, to comply with § 1997e(a), a prisoner must “properly take each step
within the administrative process.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
This includes following instructions for filing the initial grievance, Cannon v. Washington, 418
F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d
282, 284-85 (7th Cir. 2005), “in the place, and at the time, the [jail’s] administrative rules
require.” Pozo, 286 F.3d at 1025.
The purpose of these requirements is to give the jail administrators a fair opportunity
to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). If a
prisoner fails to exhaust his administrative remedies before filing a lawsuit, then the court must
dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because
exhaustion is an affirmative defense, defendants bear the burden of establishing that plaintiff
failed to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
Based on Mitchell’s current address, it appears that she is no longer in custody at the
Dane County Jail or anywhere else, so the requirements of the PLRA would not apply to her if
she chose to immediately refile a new lawsuit pursuing her asbestos, lead paint, and black mold
claims. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (PLRA did not apply to former
prisoner filing suit after his release); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004) (“[T]he
status of the plaintiff at the time he brings his suit” determines whether the plaintiff is a
2

prisoner subject to the PLRA's exhaustion requirements). Thus, even if the presiding judge
dismisses Mitchell’s claims related to asbestos, lead paint, and black mold for failure to exhaust,
Mitchell would be able to refile those claims without the need to exhaust her administrative
remedies. See Miniz v. Pazera, 2007 WL 4233455, *4 (N.D. Ind. 2007) (“Even if a prisoner
has a case dismissed for failure to exhaust available administrative remedies, they can refile the
exact same complaint once they are released from prison without having to satisfy the
exhaustion requirement.”) Further, because the events at issue occurred in 2015 and 2016,
Mitchell’s claims would not be barred by the applicable statute of limitations. See Reget v. City
of La Crosse, 595 F.3d 691, 694 (7th Cir. 2010) (in Wisconsin, statute of limitations for
constitutional claims is usually six years).
The parties have been engaging in substantive discovery related to all of Mitchell’s
claims in this lawsuit for several months, and dispositive motions are due at the beginning of
September. Given Mitchell’s active involvement in this lawsuit, as well as her demonstrated
interest in pursuing claims in this court generally, it is logical to predict that in response to
dismissal of these claims, Mitchell promptly would file a new lawsuit to pursue them, resulting
in the parties having to litigate two lawsuits on different timelines. This outcome appears to be
an unintended consequence of defendants’ motion that probably would result in more work
for defendants and their attorneys rather than less.
That said, because Mitchell was incarcerated at the time she filed suit, she is subject to
the PLRA and defendants are entitled to assert an exhaustion defense. They should promptly
notify the court whether they wish to pursue their exhaustion defense. If they do not withdraw
their partial exhaustion motion, the presiding judge will promptly resolve it.

3

Motions to Compel and for Sanctions (dkts. 160, 178)
In Mitchell’s motions to compel, she seeks an order requiring defendants to produce
(1) the inmate grievances she and “fellow inmate faculty body” filed at the Dane County Jail
and (2) her medical records. As to her medical records, defendants respond that they produced
Mitchell’s medical records to her after she submitted her consent to the third-party in
possession of her records. Mitchell has not indicated that she is dissatisfied with this response,
or that it is untrue.
As to the request related to her grievances, defendants responded that they have
produced all of Mitchell’s grievances filed at the Dane County Jail for the past five years. They
further respond that they did not produce grievances filed by “fellow inmate faculty body”
because that request was unduly vague and did not involve any parties to this lawsuit. Because
Mitchell does not adequately explain why grievances filed by other inmates are relevant to her
claims, I agree with defendants. Accordingly, both of these motions are denied.

Motions for Assistance in Recruiting Counsel (dkts. 148, 216)
Mitchell seeks this court’s assistance in recruiting counsel because she lacks legal
knowledge and suffers from post-traumatic stress disorder. Mitchell has submitted one attorney
rejection letter and states that she has contacted multiple other attorneys in her unsuccessful
attempts at retaining counsel.

Thus, it appears that Mitchell has fulfilled the Jackson

requirement of attempting to retain a lawyer on her own.
Nevertheless, I am denying these motions without prejudice because Mitchell has failed
to point to any specific instance so far in these proceedings that show that either her lack of
knowledge or her PTSD have made it excessively difficult for her to litigate her claims. See
4

Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc) (the central question in deciding whether
to request counsel for an indigent civil litigant is “whether the difficulty of the case – factually
and legally – exceeds the particular plaintiff’s capacity as a layperson to coherently present it
to the judge or jury himself”). Although it is apparent from her filings that Mitchell is frustrated
by having to deal with the attorneys for the defendants throughout the course of this lawsuit,
the requirements of the claims she is litigating do not exceed her abilities.
As a starting point, the challenges facing Mitchell are the same challenges that virtually
every pro se litigant faces. Every year this court receives between 250-300 lawsuits filed by pro
se plaintiffs who all would benefit from the assistance of a volunteer lawyer, yet this court has
a pool of at most three dozen volunteer attorneys who will take one case a year. Thus, only
those cases presenting exceptional circumstances, as defined by circuit law, can be considered
for court assistance in recruiting volunteer counsel. Mitchell’s case does not appear to fall into
this category.
First, Mitchell has been involved in other lawsuits in this court and her filings
demonstrate familiarity and facility with federal rules. It also appears that Mitchell successfully
has utilized the discovery process, not just to propound discovery requests on defendants and
to obtain evidence relevant to her claims, but also to draft and file a motion to compel
discovery in the face of an unsatisfactory response from defendants. Although Mitchell’s
motions to compel do not succeed, the fact that she is capable of filing them in the first place
establishes that she is capable of protecting her own interests during this phase of her lawsuit..
Similarly, Mitchell frequently files more generic submissions that she claims support the
validity of her claims. Regardless of the persuasiveness of these submissions, they further

5

demonstrate that Mitchell’s PTSD does not hamper her ability vigorously to prosecute her
claims.
Mitchell’s lack of familiarity with the substantive law is a legitimate concern, but it does
not, by itself, militate toward providing her with the assistance of volunteer counsel in this
lawsuit. Mitchell’s claims are straightforward. It is her burden to prove that the defendants (1)
knew that she was subjected to various hazards when she was confined at the Dane County
Jail and (2) they responded inappropriately, in violation of Mitchell’s due process rights under
the Fourteenth Amendment. In every lawsuit, including those where all parties are represented
by counsel, this court researches the applicable law on its own to ensure that it knows and
properly apply the correct standards to the parties’ claims and defenses. This practice, coupled
with both sides’ submissions in this lawsuit leave the court confident in its ability to answer
correctly the legal questions posed without enlisting an attorney assist Mitchell.
As a result of all this, I am denying Mitchell’s motion for court assistance recruiting
counsel without prejudice to Mitchell renewing it at some later stage in this case. At this point,
the parties are still engaged in discovery, and dispositive motions are due next Friday,
September 1, 2017. If Judge Conley reviews the parties’ summary judgment submissions and
concludes that Mitchell did, in fact, need counsel to represent her at the dispositive motion
stage, then he likely will recruit counsel sua sponte on Mitchell’s behalf. Further, if Mitchell
surpasses the summary judgment hurdle and believes that she cannot adequately prepare for
trial or actually try this case to a jury without the assistance of a lawyer, then she may renew
her motion and Judge Conley will consider it in light of the situation as it presents itself at that
time.

6

Motion for Postponement (dkt. 223)
Finally, Mitchell seeks an order postponing her August 29 deposition until the court
recruits counsel for her. I am denying this motion. As Mitchell likely is aware, even though she
will have to sit for a deposition without the help of counsel, if something occurs during the
course of the deposition that she believes could unduly prejudice her, she may file a motion
after the deposition seeking to remedy any actual impropriety. At this juncture, however, it is
important for Mitchell actually to sit for the deposition so that a record is made for the court
to review later if necessary.

ORDER
IT IS ORDERED that:
(1)

Plaintiff Roy Mitchell’s motions to compel (dkts 160, 178); motions for

assistance in recruiting counsel (dkts. 148, 216); and motion to postpone (dkt. 223) all are
DENIED.
(2)

Defendants may have until September 1, 2017, to notify the court whether

they wish to pursue their exhaustion defense further.

Entered this 24th day of August, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

7