Mitchell, Roy v. Dane County Sheriff Department et al

Filing 313

ORDER denying Plaintiff Roy Mitchell's Motion for Assistance in Recruiting Counsel (dkt. 239 ) without prejudice. Plaintiff's remaining motions (dkts. 135 , 156 , 182 , 236 , 239 , 259 ) are DENIED. Signed by Magistrate Judge Stephen L. Crocker on 11/20/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF W ISCONSIN
R OY M ITCHELL ,
Plaintiff,

OPINION & ORDER

v.
Case No. 16-cv-352-wmc
D ANE C OUNTY S HERIFF
D EPARTM ENT , et al.
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.
Defendants’ motion for summary judgment was recently taken under advisement by the
presiding judge. (Dkt. 261.) In the meantime, I will resolve Mitchell’s outstanding motions.
Specifically, Mitchell has filed four discovery-related motions (dkts. 135, 156, 182, 236,
259), which I am denying, as well as a motion for assistance in recruiting counsel (dkt. 239),
which I am denying without prejudice.

M otion for Sanctions (dkt. 135)
In her motion for sanctions, M itchell takes issue with portions of the defendants’
Answer to her complaint in which they deny her allegations in her complaint.

Mitchell

contends that all of her allegations are conclusively true because of the publicity surrounding
the conditions at the Dane County Jail, and she supports her motion with numerous citations
and exhibits about those conditions; therefore, it is sanctionable for defendants to deny what
she alleges to be true. As a general matter, defendants in civil lawsuits routinely respond to
the complaints against them by denying the substantive allegations.

Discovery follows,

motions are filed, and facts are determined as the case proceeds, often establishing the
accuracy of facts that defendants denied in their answers. That’s the way the process is wired,
so the court is not going to impose sanctions for defendants following a pretty standard frontend operating procedure.

M otions regarding Spoilation (dkts. 156, 182)
In two motions, Mitchell requests sanctions and for default judgment because she
believes that defendants permitted relevant evidence to be destroyed. She filed these motions
because she attempted to respond to defendants’ exhaustion summary judgment motion by
obtaining certain grievances related to her claims. Defendants have since withdrawn their
exhaustion motion. Therefore, these motions will be denied as moot.

M otion Following Deposition (dkt. 236)
In this motion, Mitchell is seeking a remedy related to certain allegedly improper
deposition questions defendants’ counsel asked during her August 29, 2017, deposition.
Specifically, she complains that defendants improperly asked her about another settlement
agreement that she reached in a lawsuit involving Dane County. It is unclear what relief
Mitchell is seeking related to these questions, but I asked for defendants to respond to clarify
what happened during the deposition. Defendants provided the excerpt of that exchange,
which shows that their attorney showed Mitchell the settlement agreement and asked her to
identify it. Mitchell answered that she recognized the document but would not discuss it
because she did not want to infringe upon any of its terms, and counsel did not press the
issue further. This exchange does not suggests that these questions were improper. Counsel

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simply asked Mitchell to identify the settlement agreement, she did not ask Mitchell to
divulge any of the details. Accordingly, the motion will be denied.

M otion to Compel (dkt. 259)
Mitchell withdrew her most recent discovery motion because defendants complied
with the request. As such, I’m denying it as moot.

M otion for Assistance in Recruiting Counsel (dkt. 239)
Finally, Mitchell has filed a motion for assistance recruiting counsel. She explains that
she suffers from post-traumatic stress disorder and reiterates her complaints about the
discovery process and her belief that defendants’ counsel has acted inappropriately
throughout the course of this lawsuit.
As Mitchell knows, there is no right to counsel in civil cases. Olson v. Morgan, 750
F.3d 708, 711 (7th Cir. 2014). Rather, a party who wants court assistance recruiting counsel
must meet several requirements. Santiago v. W alls, 599 F.3d 749, 760-61 (7 th Cir. 2010).
Mitchell has met the first requirement by establishing that she is unable to afford counsel.
However, she has not yet made an adequate showing that she made reasonable–but
unsuccessful– efforts on his own to find a lawyer to represent her. Mitchell states that she
has been unsuccessful in her attempts to retain counsel and I do not doubt this statement.
Even so, if it were important to the court’s decision at this time, then I would direct Mitchell
to submit three attorney rejection letters for this lawsuit (or provide the names and addresses
of the attorneys that she contacted about this lawsuit but who did not respond). But I won’t

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make Mitchell do this because I still would be declining to recruit a volunteer attorney for her
at this time.
Indeed, I am not persuaded that this is one of those few cases in which it appears from
the record that the legal and factual difficulty of the case exceeds the plaintiff’s ability to
prosecute it.

Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).

The question is not

whether a lawyer will do a better job than Mitchell can on her own, because that is almost
always the case.11
This lawsuit is about whether the defendants were deliberately indifferent to a risk
that Mitchell would suffer serious injury when she allegedly was exposed to hazardous
materials in the Dane County Jail. For one, Mitchell has litigated other cases in this court in
the past, and her filings in this case suggest that she is familiar with the legal standard she is
dealing with, and that she knows how to engage in the discovery process and submit filings
with this court. Moreover, Mitchell’s frequent filings and statements during her deposition
demonstrate an above-average ability to advocate for herself. W hile Mitchell files materials
that are not always relevant to her claims and although she has not succeeded in her
discovery-related motions, these things do not suggest that she cannot proceed without a
lawyer’s assistance. Furthermore, at this point, Mitchell successfully has submitted filings in
response to defendants’ motion for summary judgment. W hile her filings are lengthy and
appear to include information that are superfluous to her claims in this lawsuit, she has
successfully submitted her own proposed findings of fact, exhibits, and declaration in

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As I routinely explain to inmate litigants during our telephonic preliminary pretrial conferences, the
judges in this court would gladly provide a volunteer attorney to every pro se plaintiff if we had enough
attorneys to do this, but we don’t. This court gets over 250 new pro se civil lawsuits every year against a
pool of about 30 attorneys who will volunteer to take one case a year.
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opposition to defendants motion. After the presiding judge reviews the summary judgment
materials, if he determines that it is necessary, he has the authority to sua sponte recruit a
lawyer for Mitchell. But at this point, the record of this case does not support the conclusion
that Mitchell needs the help of an attorney. Accordingly, I am denying Mitchell’s motion
without prejudice.

ORDER
IT IS ORDERED that the following motions are denied:
(1)

Plaintiff Roy Mitchell’s M otion for Assistance in Recruiting Counsel (dkt. 239)
is denied without prejudice.

(2)

Plaintiff’s remaining motions (dkts. 135, 156, 182, 236, 239, 259) are
DENIED.
Entered this 20 th day of November, 2017.
BY THE COURT:
/s/
__________________________________
STEPHEN L. CROCKER
Magistrate Judge

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