Mitchell, Roy v. Wasserberg, Sara et al

Filing 80

ORDER granting plaintiff Roy Mitchell's 69 motion to compel as set forth in this order; denying plaintiff's 66 motion for sanctions; and granting plaintiff's 52 motion for PACER access. Signed by Magistrate Judge Stephen L. Crocker on 5/30/2018. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROY MITCHELL,

v.

Plaintiff,

OPINION & ORDER
Case No. 16-cv-593-wmc

SARA WASSERBERG, et al.
Defendants.

Plaintiff Roy Mitchell is proceeding in this lawsuit on First, Eighth and Fourteenth
Amendment claims against defendants Sara Wasserberg and Tina Gensler arising out of
their alleged failure to consider Mtichell’s transgender identity when assigning her housing
post-incarceration. This order deals with three pending motions:

I.

Plaintiff’s Motion to compel
Mitchell seeks to compel defendants to respond to Requests for Production Nos. 12

and 13. In these requests, Mitchell asks for documentation and statistics of emergency
housing funds given to other individuals under community supervision, as well as all
instances in the last four years in which defendant Wasserberg sought emergency subsidies
for any offenders under her supervision. Defendants object to both requests on the basis
that information related to emergency housing funds given to other individuals under
community supervision are not relevant or proportional to Mitchell’s claims in this lawsuit.
I disagree.

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The court has granted Mitchell leave to proceed on a Fourteenth Amendment equal
protection clause claim against the defendants because Mitchell alleges that she was treated
worse than other individuals on community supervision because of her transgender status.
Mitchell alleges, among other things, that even though Wasserberg could have used the
emergency subsidy to put Mitchell in a hotel for a month, Wasserberg only provided
Mitchell with one week of hotel funds after Mitchell had been sexually assaulted during
her forced stay in a male homeless shelter. Evidence as to whether similarly situated
cisgender individuals under Wasserberg’s supervision were provided with longer emergency
subsidies would be relevant to the determination whether Wasserberg was treating
transgender clients differently from cisgender clients.
That said, defendants have a point with respect to their proportionality objection
to RFP 12. While RFP 13 requests information for the past four years, RFP 12 is not so
limited. Four years should provide a large enough representative sample for both RFPs
without unduly burdening the defendants. Therefore, that’s the time limit for both.
Here are some other points bearing on discovery: First, Mitchell must keep in mind
that when she files materials with the court she must follow the redaction requirements set
forth in Rule 5.2 of the Federal Rules of Civil Procedure. Second, Mitchell often files
discovery materials in her lawsuits. This is not necessary; in fact, it is not helpful and
Mitchell should stop doing it except where there is a separate reason to file these materials
with the court. Filing discovery materials clogs the docket with irrelevant information and
makes the file harder for everyone to use. More importantly, this practice might result in
the inadvertent public disclosure of confidential or sensitive information. Mitchell should
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do her best to avoid this problem. Third, if defendants seek a protective order permitting
them to redact personal identifying materials from their discovery responses, then it is
likely that the court will grant this request.

While the circumstances and gender

identification of other recipients of emergency housing are relevant to Mitchell’s claim, she
has no need to know the identities of other recipients of emergency subsidies.

II.

Motion for sanctions
Mitchell’s motion for sanctions complains about the nature of defendants’ answer

to her complaint. Defendants filed a general denial to her complaint because Mitchell’s
complaint was not organized by paragraph and instead included long paragraphs of
allegations. I am denying this motion because Mitchell has not identified any sanctionable
conduct by the defendants. To the extent that Mitchell believes that she needs more
specific responses, she may serve discovery requests to obtain this information.

III.

Motion for PACER access
Mitchell requests a court order granting her free access to PACER. In the motion,

she explains that she is proceeding in forma pauperis and she does not have the funds
available to pay for access to the PACER online docketing system. Individuals proceeding
in forma pauperis do not automatically receive free access to PACER; rather, such individuals
are directed to petition the court for free access, and courts may grant such requests upon
a finding that the applicant is indigent and that free access is “necessary to avoid

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unreasonable burdens.” See Electronic Public Access Fee Schedule, https://www.pacer.gov/
documents/epa_feesched.pdf (last visited May 29, 2018).
Given that this lawsuit is in its beginning stages and I anticipate further motion
practice in addition to dispositive motions, I am persuaded that Mitchell will suffer an
unreasonable burden without free access to PACER. Therefore, I will GRANT her motion,
but only insofar as Mitchell will be exempted from paying fees incurred in connection with
filing and accessing electronic documents in this particular lawsuit. Mitchell will not be
exempt from the payment of fees incurred in connection with other uses of the ECF or
PACER system in this court.

ORDER
IT IS ORDERED that:
1. Plaintiff Roy Mitchell’s motion to compel (dkt. 69) is GRANTED, as set forth
above.
2. Plaintiff’s motion for sanctions (dkt. 66) is DENIED.
3. Plaintiff’s motion for PACER access (dkt. 52) is GRANTED.
Entered this 30th day of May, 2018.
BY THE COURT:
/s/
_______________________
STEPHEN L. CROCKER
Magistrate Judge

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