Soto, Jose et al v. White, Nancy et al

Filing 43

ORDER that Plaintiff Jose Soto's motion to compel, Dkt. 20 , is GRANTED as to his medical records, the missing interrogatory signature of defendant Nancy White, and the specification of the interrogatory numbers associated with the defendants ' signatures. By October 15, 2018, defendants must certify either that they have provided Soto with his complete medical file or that they have provided him an opportunity to review that file in full, provide a properly executed interrogatory si gnature for Nancy White, and identify which signatory answered each interrogatory.Soto's motion to compel, Dkt. 20 , is DENIED as to Soto's requests for production of measurements and Soto's request for sanctions.Soto's for leave to file an amended complaint, Dkt. 27 , is GRANTED.Defendants' request that the deadline for summary judgment be moved from October 5 to November 9, 2018, is GRANTED.Soto's motion for assistance in recruiting counsel, Dkt. [28 ], is DENIED without prejudice.The court will hold a telephonic hearing on October 10, 2018 at 1:00 p.m. on Soto's motion for leave to pay for depositions using funds from his release account. Dkt. 35 . Counsel for defendant is responsible for initiating the conference call to chambers at [phone]. Signed by District Judge James D. Peterson on 10/4/2018. (jef),(ps)

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

JOSÉ SOTO,
Plaintiff,
v.
OPINION & ORDER
NANCY WHITE, JEFFREY MANLOVE,
DONNA LARSON, BELINDA SCHRUBBE,
ANN YORK, GAIL WALTZ, and AMY
GUNDERSON,

17-cv-551-jdp

Defendants.
Pro se plaintiff José Soto is an inmate at the Waupun Correctional Institution (WCI).
I granted him leave to proceed on his Eighth Amendment deliberate indifference claims against
each of the named defendants, who he alleges failed to provide him with adequate medical care
for his painful foot condition. Dkt. 9. He has filed five motions: (1) a motion to compel
discovery and for sanctions, Dkt. 20; (2) a motion for leave to file an amended complaint, Dkt.
27; (3) a motion for assistance in recruiting counsel, Dkt. 28; (4) a motion for a preliminary
injunction, Dkt. 33; and (5) a motion for leave to pay for a deposition using funds from his
release account, Dkt. 35. Although the motion for preliminary injunction is still being briefed,
the other four motions are ready to be decided.
For the reasons explained below, I will deny Soto’s motion for assistance in recruiting
counsel. I will grant his motion to compel in part only. I will withhold judgment on his motion
for leave to pay for a deposition from his release account pending a telephonic hearing. I will
grant Soto’s motion to amend his complaint, as well as defendants’ request that the deadline
for summary judgment motions be moved from October 5 to November 9, 2018. Dkt. 32.

ANALYSIS
A. Motion to compel and for sanctions
Soto makes three allegations in his motion to compel: (1) that defendants have
neglected to sign or notarize their discovery responses; (2) that defendants are refusing to
provide measurements of relevant distances within the institution; and (3) that defendants are
improperly withholding documents from his medical record concerning physical examinations
of his feet between January 1, 2015 and the present.
Soto’s allegation that defendants did not sign or notarize their interrogatory responses
appears to have been resolved for the most part. Soto includes as exhibits three interrogatory
signature pages with blank signature blocks and notary acknowledgments, Dkt. 21-1, at 1–3,
which were provided to him as part of defendants’ responses to his interrogatories. But the
record shows that when Soto inquired about the absence of notarized signatures, defendants’
counsel told him that, because defendants responded to Soto’s first set of interrogatories with
documents rather than written responses, they did not believe signatures were necessary. Dkt.
31-3. Defendants are not quite correct about the signature requirement.
Soto’s first set of interrogatories are actually hybrid requests that include both an
interrogatory and a request for production.1 Under Rule 34, there is no requirement that a
response to a request for production of documents be signed by a party. But under Rule 33,
the responding party must sign for the answers and the attorney must sign for the objections.

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For example, Soto’s first interrogatory states as follows: “1. STATE the duties of Defendant
Nancy White, Health Service Manager at times relevant to this action, at the Waupun
Correctional Institution. If those duties are set forth in any job description or other document,
produce the document.” Defendants respond by referring Soto to a specific Bates range from
their production of documents rather than by separate written response. Dkt. 31-1, at 12–13.

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If the answer to an interrogatory can be derived from business records, and the burden
ascertaining the answer would fall substantially equally to either party, Rule 33(d) allows the
responding party to answer by producing business records. But that response is still a response
to an interrogatory. And it should be signed by the responding party, who, by signing, certifies
that the business records will provide a truthful answer to the question posed by the
interrogatory.
Counsel for the defendants agreed to provide the signatures thinking it was a courtesy
rather than a requirement. But in the end Soto got most of the signatures that he was entitled
to: each defendant then provided notarized signatures for each interrogatory response in which
he or she participated. See Dkt. 31-4, at 5–11, 15–16, 27–32; Dkt. 31-5, at 2–3. The one
exception is defendant Nancy White, who has not signed for her responses to the first set of
interrogatories.2 She will need to provide that signature by October 15, 2018.
In his reply, Soto contends that the signed signature pages are themselves deficient
because they were not dated by the signatories, do not contain oaths or affirmations that they
were signed under penalty of perjury, and do not indicate which interrogatories the signature
pages are associated with. Dkt. 38, at 1. He attaches as exhibits eight signature pages sent to
him by defendants’ counsel to illustrate these defects. Defendants’ signatures are not perfectly
compliant.
The signatures were notarized, which satisfies the oath requirement under Rule
33(b)(3) and provides the signature date. Soto is correct that the eight signature pages he

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Defendant White provided a completed signature page for Soto’s third set of interrogatories,
Dkt. 31-5, at 2, but appears never to have provided a completed signature page for Soto’s first
set of interrogatories, Dkt. 31-4, at 8 (blank signature block).

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appends to his reply brief do not indicate which number interrogatory response each signature
page is associated with. Instead, they say only “AS TO INTERROGATORIES.” Dkt. 38-1, at
1–7, 9. (By contrast, on the signature pages associated with the responses to Soto’s third set of
interrogatories, defendants specify the interrogatory responses to which each signature applies.
E.g., Dkt. 31-4, at 27 (“AS TO INTERROGATORY RESPONSE NOS. 1–3, 10”)). Plaintiff is
entitled to know who answered each interrogatory, so I’ll require defendants’ counsel to provide
this information to Soto by October 15, 2018. I will not require that defendants re-sign for the
interrogatories, although that is one way for them to provide the required information to Soto.
Soto’s reply raises one additional signature-related issue: he says that defendants’
objection to his first set of interrogatories went unsigned by defendants’ counsel. But a review
of the record shows that defendants’ counsel did sign as to the objection. See Dkt. 31-1, at 14.
Soto is correct that a second copy of the responses to his first set of interrogatories, which
accompanied the later-provided signature pages defendants’ counsel sent as a courtesy on June
13, 2018, lacks a signature block for defendants’ counsel. See Dkt. 31-4, at 4. However,
counsel’s signature as to the objection had already been provided.
Soto objects to defendants’ refusal to provide specific measurements of the locations he
frequents within the prison. He asks me to direct defendants to provide these measurements
so that he can illustrate the extent of the pain he suffers when walking from place to place.
Dkt. 38, at 2. Defendants object to these requests as improper subjects for a Rule 34 document
request because they would require defendants to create documents that do not exist, and they
contend that the requests are unduly burdensome. Soto notes that, in a prior lawsuit of his,
defendants at another institution provided specific measurements in response to a request for
production. See Dkt. 21-1, at 11–12 (discovery responses in Soto v. Morgan, No. 11-cv-567

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(W.D. Wis. filed Aug. 10, 2011)). Defendants are correct that Rule 34 does not require parties
to create new documents in response to document requests. And the fact that the defendants
in another case were willing to provide measurements in response to a request for production
does not mean that defendants in the current case are required to do the same. If Soto believes
precise distances are important to the prosecution of his case, he can make that request as an
interrogatory. I will not compel defendants to provide these measurements in response to a
Rule 34 request for production of documents. (Although this strikes me as a matter that
reasonable litigants and counsel could resolve informally.)
Finally, Soto alleges that defendants have not produced documents of physical exams
of Soto’s feet from January 1, 2015 to the present. Whether there are any such documents is
not clear: Soto’s complaint alleges that such examinations have never occurred. Dkt 1, at ¶ 10;
Dkt. 27, at ¶ 10. Soto is entitled to an opportunity to review his medical records. Defendants
assert that they have provided Soto with “a courtesy copy of over 500 pages of medical
records,” but they have not said that those 500 pages constitute his entire medical record or
otherwise confirmed that Soto has had an opportunity to review all of the files that might
contain records of any physical exam. Dkt. 30, at 3. In light of this ambiguity, I will grant
Soto’s motion to compel with respect to his medical records. By October 15, 2018, defendants
must certify either that they have provided Soto with his complete medical file or that they
have provided him an opportunity to review it in full. That means that if defendants have not
yet afforded Soto an opportunity to review his entire medical record, they must promptly do
so.
Soto asks that I impose sanctions on the defendants for “l[ying] to [the] court in
February until Soto produced documents” and “misrepresent[ing] facts in the case.” Dkt. 21,

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at 2. There were no filings in this matter in February, and these allegations are not specific
enough to determine whether sanctions are appropriate. I will therefore deny Soto’s motion for
sanctions.
B. Motion for leave to file an amended complaint
Soto has filed an unopposed motion for leave to amend the complaint, Dkt. 25, along
with a proposed amended complaint, Dkt. 27. The proposed changes are minor: he wishes to
add two defendants, Health Services Unit Managers Scarpita and Crystal Marchant. He has
also increased the amount of compensatory and punitive damages sought against defendants
Anne York, Gail Waltz, and Amy Gunderson from $50,000 to 150,000. I will grant Soto’s
motion, and will consider the amended complaint to be the operative pleading. I must proceed
by screening the amended complaint under 28 U.S.C. § 1915A and dismissing any portion that
is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks
for money damages from a defendant who by law cannot be sued for money damages. Since
Soto’s amended complaint is substantially identical to the complaint I previously screened,
Dkt. 9, not much additional analysis is needed.
Soto alleges that defendants, including newly added defendants Scarpita and Marchant,
know about his foot condition and know that the condition causes him great pain unless he
has proper support from custom orthotics, yet fail to adequately treat the condition. As I
explained in my screening order, this is sufficient to make out a claim that his Eighth
Amendment rights have been violated. I will therefore allow Soto to proceed on his Eighth
Amendment claims against defendants Scarpita and Marchant. Because of the late amendment,
I will also grant defendants’ request that the deadline for summary judgment be moved from
October 5 to November 9, 2018. Dkt. 32.

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C. Motion for assistance in recruiting counsel
As for Soto’s motion for assistance in recruiting counsel, I will deny it without prejudice.
There is no right to counsel in civil cases, Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014),
so a party who wants assistance from the court in recruiting counsel must meet certain
requirements. Santiago v. Walls, 599 F.3d 749, 760–61 (7th Cir. 2010). Soto has already met
two of the requirements because he has shown that he is unable to afford counsel and that he
has made reasonable efforts on his own to find a lawyer. See Dkt. 5; Dkt. 29-2.
But Soto must also show that his is one of the relatively few cases in which it appears
from the record that the legal and factual difficulty of the case exceeds the litigant’s
demonstrated ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007).
“The question is not whether a lawyer would present the case more effectively than the pro se
plaintiff” but instead whether the pro se litigant can “coherently present [his case] to the judge
or jury himself.” Id. at 655. Soto highlights his mental health problems, his placement in
segregation, and the complexity associated with prosecuting cases involving medical issues as
evidence of his need for assistance in recruiting counsel.
Soto’s psychiatric records indicate that he does indeed suffer from several mental health
issues, Dkt. 29-1, but he has thus far shown himself to be a capable and zealous litigant in spite
of these limitations. His numerous submissions to the court demonstrate that he can write
persuasively, make arguments, and cite relevant legal authority. Similarly, his placement in
segregation, which he says reduces his access to legal materials and the law library, does not
appear to have hindered his ability to litigate this case. He has filed five motions in the past six
weeks alone, each of which demonstrates facility with legal research and the procedural rules.

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Soto argues that his claims are of such a complex nature as to require assistance of
counsel. Specifically, he notes that this case will require review of restricted "security and
medical manual policies not allowed to prisoners for review even [in] civil action[s]. Counsel
on the other hand, “will be permitted [to review] and use [] restricted security/medical policies.”
Dkt. 28, at 4. It is unclear what policies or manuals Soto is referring to, or why his case will
implicate documents that prisoners are restricted from viewing. That said, if this case ultimately
does come to involve policies or manuals that defendants will not let Soto review, Soto can
renew his motion for assistance in recruiting counsel.
Soto further argues that his case will “require depositions and expert testimonies of
individuals not available to plaintiff, the resources necessary to locate witnesses no longer
employed by D.O.C.,”3 and the capacity to “question, subpoena, depose,” and deploy “medical
terminology, charts, graphs, books, expert testimony and depositions.” Id. But the Court of
Appeals for the Seventh Circuit has rejected the view that every claim about medical care
requires expert testimony or assistance of counsel. See, e.g., Romanelli v. Suliene, 615 F.3d 847,
853–54 (7th Cir. 2010). Soto’s claims center on the straightforward allegation that defendants
failed to provide him with adequate medical treatment. When it “is so obvious that even a lay
person would perceive the need for a doctor's attention,” but prison staff fail to provide
treatment, that is a violation of the Eighth Amendment. Greeno v. Daley, 414 F.3d 645, 653

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Soto does not identify which former DOC employees he believes it necessary to depose. If
Soto can identify specific individuals and explain why their depositions are necessary, he should
ask defendants’ counsel if defendants will cooperate in coordinating these depositions. If
defendants are unwilling to do so, Soto can contact the court. If necessary, the court can help
facilitate telephonic depositions.

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(7th Cir. 2005). Such a claim does not necessarily require expert testimony or the assistance
of counsel, and Soto has failed to identify specific aspects of his case that he believes make it
especially complex. Although complexities may come into focus as the case moves forward, it
is too soon to tell whether assistance of counsel will be necessary. I will therefore deny Soto’s
motion for assistance in recruiting counsel without prejudice.
D. Motion for leave to pay for a deposition using release account funds
In his latest motion, Soto asks for leave to pay for a deposition using funds from his
inmate release account, or, in the alternative, to allow him to conduct a deposition at WCI
with a video camera and in the presence of a notary public. Soto believes depositions are
necessary in this case because, in his words, when “defendants are questioned verbally by Soto
. . . they give truthful answers, . . . yet when on paper (admissions, etc.) they give false replies,
indicating [that an] attorney is doing the answering to cover wrongdoing and manipulate the
record.” Dkt. 35, at 1.
Soto has the right to take depositions in accordance with the procedures outlined in
Rule 30, and he has articulated a reasonable explanation as to why such depositions are
necessary. He must, however, assume the associated financial costs himself. Soto asks me to
allow him to pay for court reporting costs using the funds in his release account. He points out
that, because he is serving a life sentence without parole, use of his release account funds will
not harm anyone. He makes a plausible argument. As explained further below, I will hold a
telephonic hearing on this issue, during which defendants can address whether Soto might be
allowed to pay for litigation expenses using his release account funds.
As an alternative to paying court reporting costs, Soto proposes that I order the
institution’s records office to permit him to “conduct a videotaped recording at Waupun

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Correctional Institution and swear in defendant by way of [a] notary public at WCI.” Dkt. 35,
at 2. Under Rule 30, depositions “may be recorded by audio, audiovisual, or stenographic
means,” and a notary public may serve as an “officer . . . designated under Rule 28.” Fed. R.
Civ. P. 30(b)(3)(A), (5)(A). Soto could therefore conduct minimally adequate depositions
without the services of a court reporter. This would make depositions substantially less
expensive, although Soto would still need to bear any costs associated with the notary and the
audio or audiovisual recording himself. See Fed. R. Civ. P. 30(b)(3)(A) (“The noticing party
bears the recording costs.”).
With guidance from the court, the parties in this case may be able to work out a solution
that will allow Soto to take depositions at minimal expense. I will therefore order that a
telephonic hearing be scheduled on Soto’s motion. At this hearing, Soto should be prepared to
identify each individual he seeks to depose and explain why each deposition is necessary to his
case. Defendants should be prepared to discuss the costs associated with recording depositions
by audiovisual means in front of a notary public, as well as whether Soto might be allowed to
pay for deposition expenses using his release account funds. I will withhold a decision on Soto’s
motion pending this hearing.

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ORDER
IT IS ORDERED that:
1. Plaintiff José Soto’s motion to compel, Dkt. 20, is GRANTED as to his medical
records, the missing interrogatory signature of defendant Nancy White, and the
specification of the interrogatory numbers associated with the defendants’
signatures. By October 15, 2018, defendants must certify either that they have
provided Soto with his complete medical file or that they have provided him an
opportunity to review that file in full, provide a properly executed interrogatory
signature for Nancy White, and identify which signatory answered each
interrogatory.
2. Soto’s motion to compel, Dkt. 20, is DENIED as to Soto’s requests for production
of measurements and Soto’s request for sanctions.
3. Soto’s for leave to file an amended complaint, Dkt. 27, is GRANTED.
4. Defendants’ request that the deadline for summary judgment be moved from
October 5 to November 9, 2018, is GRANTED.
5. Soto’s motion for assistance in recruiting counsel, Dkt. 28, is DENIED without
prejudice.
6. The court will hold a telephonic hearing on October 10, 2018 at 1:00 p.m. on Soto’s
motion for leave to pay for depositions using funds from his release account. Dkt.
35. Counsel for defendant is responsible for initiating the conference call to
chambers at [phone]. The court will withhold decision on this motion until
after that hearing.
Entered October 4, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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