Ammerman, Paul v. Singleton et al

Filing 74

ORDER that 21 motion for a preliminary injunction and temporary restraining order remains denied and additional filings related to it should be made in Case No. 17-cv-800-wmc, denying as moot 47 Motion for Clarification, denying 37 Motio n for the forfeiture of defense's counsel rights, denying 52 Motion for Sanctions, denying 55 Motion for Assistance in Recruiting Counsel, denying 59 Motion for Finding of Contempt of Court, and denying 63 Motion for the chance to reply to defense's response to the contempt motion. Signed by District Judge William M. Conley on 4/26/2019. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PAUL D. AMMERMAN,
Plaintiff,
v.

OPINION AND ORDER
17-cv-193-wmc

DR. SINGLETON, et al.,
Defendants.
Before the court are several filings related to plaintiff’s motions for: injunctive relief
requiring the DOC to supply him with gabapentin to treat an alleged seizure condition
(dkt. #21); an order depriving defendants of their right to counsel due to
misrepresentations that they allegedly made in this series of filings (dkt. #37); an award
of sanctions (dkt. #52); assistance in recruiting counsel (dkt. #55); and an order for
contempt of court (dkt. #59). For the reasons that follow, each of these motions will be
denied.

BACKGROUND
The background related to these motions is principally set forth in this court’s July
6, 2018, opinion and order. (Dkt. #27.) The court has since received plaintiff’s medical
records (dkt. #29), a declaration by his DOC physician (dkt. #32), a response to that
declaration by plaintiff (dkt. #36), and a motion for clarification (dkt. #47). Each of these
documents relate to plaintiff’s motion for injunctive relief, and their import is discussed in
the context of deciding that motion below.

OPINION
I.

Request for Preliminary Injunctive Relief
In response to the motion for injunctive relief, the court initially required counsel

for the Wisconsin DOC to provide information about plaintiff’s access to gabapentin, as
well as to advise whether an order was required to ensure that defendants regularly
provided plaintiff with prescribed gabapentin until a preliminary injunction hearing could
be held; however, given the lack of supporting evidence, the court otherwise denied
plaintiff’s request for a preliminary injunction. (Dkt. #27.) Based on the subsequent
filings by the parties, the court will not disturb its original finding that plaintiff has not
made an adequate showing that he is likely to succeed on the merits with respect to any
other request for injunctive relief.
Specifically, Salam Syed, who is plaintiff’s doctor at Columbia Correctional
Institution, opined in his declaration that plaintiff is not at risk for seizures. (Dkt. #32
¶ 9.) Dr. Syed explained that gabapentin in particular was prescribed for radiating pain in
plaintiff’s left shoulder and arm in July, 2015.

(Id. ¶ 10.)

Since Dr. Syed believed

gabapentin was unnecessary to treat plaintiff’s carpal tunnel syndrome, he ordered it to be
tapered off in February, 2017. (Id. ¶ 11.) However, he placed plaintiff back on gabapentin
in May of the same year after additional pain complaints. (Id. ¶ 12.)
Following two incidents where he fell, which plaintiff believes were seizures, he was
seen by the UW Health Faint and Fall Clinic, which found that his symptoms were due to
“lightheadedness,” rather than epilepsy or a seizure disorder. (Id. ¶¶ 13-14.) After several
pills were discovered in his cell in violation of prison policy, plaintiff’s gabapentin

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prescription was again discontinued in June of 2018, because the pills could be sold or used
to overdose. (Id. ¶ 15.) Plaintiff was then prescribed Nortriptyline for his nerve pain,
which Dr. Syed believes to be an appropriate substitute for gabapentin. (Id. ¶ 16.)
Plaintiff argues that Dr. Syed’s declaration is misleading because it does not
mention that he cancelled a neurology appointment in May, 2017. (Dkt. # 36 ¶¶ 1-2.)
However, it is unclear how this omission bears on the veracity of Dr. Syed’s declaration,
especially as it occurred well before his UW consultation in January of 2018, which
concluded that plaintiff did not suffer from seizures. While plaintiff further argues that
UW’s conclusion was from the perspective of a cardiologist, rather than neurologist (id.
¶ 4), the distinction would seem largely immaterial as UW’s diagnosis explains plaintiff’s
fainting symptoms and is consistent with Dr. Syed’s own diagnosis. Plaintiff also explains
that his storing of gabapentin in his cell had been prompted by shortages in the prison’s
supply, but he neither contests that this was a violation of prison policy, nor that this was
the reason his prescription was discontinued. (See dkt. #37 ¶ 5.) Plaintiff also represents
that Nortriptyline was prescribed to help him sleep, in addition to nerve pain, but this does
not disturb Dr. Syed’s conclusion that gabapentin is unnecessary to treat plaintiff’s nerve
pain. (Dkt. #36 ¶ 6.)
Plaintiff makes additional assertions about his medical care in his later motion
seeking forfeiture of defendants’ right to counsel that arguably bear on his request for
preliminary injunctive relief. (Dkt. #37.) Plaintiff asserts in particular that Dr. Syed
discontinued gabapentin because he threatened to add Syed as a defendant to a lawsuit
(id. ¶ 2), but this is hardly persuasive given plaintiff’s admission to storing that drug in his

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cell in violation of prison policy. Plaintiff further reasserts that gabapentin prevents his
seizures (id.), but this is insufficient for injunctive relief when both Dr. Syed and the UW
Health Faint and Fall Clinic concluded that his so-called seizures were not the cause of
plaintiff’s falls. Finally, plaintiff later theorizes that pain increases his blood pressure,
which could be the cause of seizure episodes (id. ¶ 6), but this again assumes that seizures
are the cause of his falls, which does not bear on whether Nortriptyline is sufficient for the
treatment of his pain in the months leading up to trial.
Finally, as mentioned in the court’s previous ruling, injunctive relief is inappropriate
in this matter because the screened case does not include Columbia Correctional
Institution (or its medical providers), which is where plaintiff is currently incarcerated and
being denied gabapentin. Accordingly, plaintiff is directed to make any additional filings
related to his request for injunctive relief in his other case against that institution (17-cv800-wmc), where he requested the same injunction and the unnamed Health Service Unit
Supervisor of the Columbia Correctional Institution is a party.

II. Defendants’ Right to Counsel
Plaintiff argues that defendants have forfeited their right to counsel for making
dishonest statements about his medical care in their filings; he also argues that Dr. Syed
and Assistant Attorney General Rakvic-Farr should be held in contempt for the same
reason. (Dkt. #37 at 5.) Because plaintiff has proven no such dishonesty, this motion is
denied. Regardless, there is no legal precedent for such an extraordinary remedy. Indeed,
as is true in the cases cited by plaintiff, courts have sometime restricted a party’s choice of
a specific counsel, and even then, typically in situations where a party has changed its

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representation in order to hinder proceedings.

III. Request for Sanctions
Based on some of the same allegations as in his motion to strip defendants of their
right to counsel, plaintiff next seeks sanctions alleging that “the defense committed
spoliation of the medical records and Dr. Syed committed perjury.” (Dkt. #52 at 2; compare
id. at 1-2 (alleging that: (1) the progress note was altered; (2) the medication log did not
show gabapentin being restarted in May; and (3) only plaintiff’s copy of the progress notes
is consistent with the medication log) with dkt. #27 at 2-4 (alleging that: (1) the progress
note “is false”; (2) the medication log did not show gabapentin being restarted in May; and
(3) Syed and counsel “submitted tampered/altered evidence”).) There being no record
evidence supporting these allegations, this motion will also be denied.

IV. Assistance Recruiting Counsel
Plaintiff next asks the court to “appoint[]” him counsel because: (1) he cannot
afford representation; (2) his “imprisonment will greatly limit his ability to litigate”; (3) the
case is “complex,” requiring “significant research, investigation, and [the retention of]
medical professionals”; (4) an attorney would be able to present evidence and examine
witnesses better; and (5) plaintiff could not obtain his own lawyer. (Dkt. #55 ¶¶ 1-4.)
Recognizing that the court would not consider his request without a showing that he either
(1) made reasonable efforts to find his own lawyer or (2) was prevented from making such
efforts, Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992), Ammerman also
attached letters from three attorneys who declined to represent him. (Dkt. #55-1 at 1-5.)

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In considering whether to recruit counsel for a pro se litigant, the relevant question
is whether the complexity of the case exceeds the plaintiff’s ability to litigate it. Pruitt v.
Mote, 503 F.3d 647, 653 (7th Cir. 2007). While understandably concerned that a trained
attorney would litigate his case better than he could, Ammerman is in the same position
as most other pro se litigants, almost none of whom has legal training of any kind. Thus
far, Ammerman’s multiple filings have been legible, coherent and focused on the relevant
issues, suggesting that he is at least as capable as the average pro se litigant to present his
claims.
Certainly, pro bono counsel may be able to present plaintiff’s case more effectively
than plaintiff, but “if that were the test, district judges would be required to recruit counsel
for every indigent litigant.” Pruitt, 503 F.3d at 655 (quoting Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006)) (internal quotation marks omitted). Given the difficulty the
court faces in recruiting counsel for pro se litigants in substantially greater need of
assistance, the court will deny plaintiff’s motion at this time, but will do so without
prejudice.

If discovery, factual or legal issues involved in this case become more

complicated than they appear right now, Ammerman may renew his motion for assistance.

V. Contempt of Court
Finally, plaintiff asks the court to find “Dr. Syed and any other ‘prison authorities’”
in contempt of court for discontinuing his gabapentin and violating the preliminary
injunction. (Dkt. #59 at 1-2.) As the court previously explained above, however, the
limited relief granted was merely for defendants to provide information -- not to continue
or restart the gabapentin -- and plaintiff has not made an adequate showing that he is likely

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to succeed on the merits of his claim that the decision to discontinue his prescription for
gabapentin was due to deliberate indifference, much less the product of defendants’
contempt for this court’s order.
Plaintiff also alleges that “Dr. Syed committed perjury” in his July declaration by
declaring that Ammerman is currently prescribed nortriptyline to treat his nerve pain,
because that medication was discontinued in March 2018. (Id. at 2.) As defendants
explain, however, plaintiff’s nortriptyline was initially prescribed on September 14, 2017,
for six months, and while interrupted briefly in March, Ammerman’s medication records
confirm that he continued to receive nortriptyline during April, May, June and July 2018.
(Dkt. #62-1 at 1-8.) 1 Accordingly, this motion will also be denied in its entirety. Plaintiff
is warned that further frivolous filings will be stricken by the court. 2

ORDER
IT IS ORDERED that:
1) Plaintiff’s motion for a preliminary injunction and temporary restraining order
(dkt. #21) remains denied and additional filings related to it should be made in
Case No. 17-cv-800-wmc.
2) Plaintiff’s motion for clarification (dkt. #47) is DENIED AS MOOT.
3) Plaintiff’s motion for forfeiture of defendants’ counsel rights (dkt. #37) is
DENIED.

In addition to the interruption in March, there were days when plaintiff did not receive the
nortriptyline, but that hardly amounts to perjury.

1

At one point, plaintiff has also filed a request for leave to file a reply on his motion for contempt.
(Dkt. #63.) This motion will also be denied. See United States v. Waldrip, 859 F.3d 446, 451 n.2
(7th Cir. 2017) (“Arguments raised for the first time in a reply brief are waived.” (citing Mendez v.
Perla Dental, 646 F.3d 420, 423-24 (7th Cir. 2011))).
2

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4) Plaintiff’s motion for sanctions (dkt. #52) is DENIED.
5) Plaintiff’s motion for assistance in recruiting counsel (dkt. #55) is DENIED
WITHOUT PREJUDICE.
6) Plaintiff’s motion for contempt of court (dkt. #59) is DENIED.
7) Plaintiff’s motion for leave to file a reply on his motion for contempt of court
(dkt. #63) is DENIED.
Entered this 26th day of April, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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