Vogelsberg, Jeffrey v. Kim, Young et al

Filing 115

ORDER that plaintiff Jeffrey Vogelsberg's motion to strike his deposition, Dkt. 111 , is DENIED. Vogelsberg may have until December 18, 2019, to file his response to defendants' motions for summary judgment. Defendants may have until January 4, 2020, to file a reply. No further extensions will be granted. Signed by District Judge James D. Peterson on 9/19/2019. (rks),(ps)

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

JEFFREY VOGELSBERG,

v.

Plaintiff,

YOUNG KIM, CHERYL WATERS, SATINDER
DHANOA, BRENDA BREDLOW, STEPHANIE
WEBSTER, MELISSA BENNET, TENZIN ENDERS,
JAMES MATTHEWS, CORRECT CARE SOLUTIONS,
and DANE COUNTY,

OPINION and ORDER
17-cv-596-jdp

Defendants.
The court held a telephonic status conference in response to plaintiff Jeffrey
Vogelsberg’s letter in which he stated that he was uncertain how to respond to defendants’
motions for summary judgment. Dkt. 109. Vogelsberg appeared on his own behalf; defendant
Dane County appeared by Matteo Reginato; Correct Care Solutions and the individual
defendants appeared by Ryan Wiesner. This order will summarize what happened at the
telephone conference and explain more thoroughly why I believe that Vogelsberg is capable of
representing himself in this case.

ANALYSIS
A. Matters addressed at the telephone conference
I addressed three matters at the conference. First, I gave Vogelsberg an overview of what
he must to do to respond to defendants’ motions for summary judgment. As discussed at the
conference, I am sending Vogelsberg written instructions about summary judgment that come
from this court’s guide for pro se litigants. I am also sending Vogelsberg another copy of the

preliminary pretrial conference order and the attachments to the order. Vogelsberg should
carefully review all of these materials, especially the attachments on “Motions for Summary
Judgment” and “Guidance to Pro Se Litigants Regarding Motions for Summary Judgment.”
Those documents include information that Vogelsberg will need to know to comply with this
court’s rules related to summary judgment.
Second, I set a new deadline for Vogelsberg to respond to defendants’ summary
judgment motions. Correct Care Solutions proposed a 45-day deadline; Dane County proposed
a 60-day deadline; Vogelsberg asked for three months. The amount of time that Vogelsberg is
requesting is significantly longer than is ordinarily allowed, even in cases involving pro se
litigants. And it has already been more than four months since defendants filed their summary
judgment motions. But Vogelsberg says that he needs the extra time because he will be
undergoing heart valve surgery in the next few weeks, which will prevent him from working on
this case. To prevent any unfair prejudice to Vogelsberg, I granted him the full three-month
extension. Vogelsberg should use the extra time well. I will not be granting any further
extensions.
Third, I denied Vogelsberg’s motion to strike his deposition. Dkt. 111. In the motion,
Vogelsberg says that defendants failed to comply with Federal Rule of Civil Procedure 30 before
taking his deposition. Specifically, he says that the deposition notice was filed on behalf of
Dane County only, so the Correct Care defendants never gave him reasonable notice as
required by Rule 30(b)(1). And only the Correct Care defendants asked the court for
permission to depose Vogelsberg (on the day before the deposition, Dkt. 65), so Dane County
never received permission from the court to depose him, as required by Rule 30(a)(2)(B).

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Basically, Vogelsberg says that neither set of defendants complied with both requirements, so
the deposition is void.
Even if I assume that there was a technical violation of Rule 30, I am not persuaded
that striking the deposition is an appropriate remedy because Vogelsberg hasn’t identified any
prejudice. Although he says that Correct Care’s failure to send its own deposition notice
prevented him from preparing for the deposition, he doesn’t say how. For example, he doesn’t
identify topics addressed at the deposition that he wasn’t able to anticipate and he doesn’t
point to any answers he gave that were inaccurate. As discussed further in the next section, my
own review of the deposition revealed that Vogelsberg had a thorough understanding of the
facts of his case. His answers did not appear confused or uncertain. But if Vogelsberg believes
that any of his deposition testimony is incomplete or needs clarification, he is free to
supplement that testimony in a declaration that he files with his summary judgment response.
B. Vogelsberg’s ability to represent himself
In Vogelsberg’s letter to the court, Dkt. 109, Vogelsberg said that he didn’t know what
a “summary judgment” is or how to respond to it. Because this again raises the question
whether Vogelsberg is able to represent himself in this case, I will explain in some detail why I
believe that he is, discussing both the evidence that he has cited and other evidence that is part
of the record.
1. Mental health issues.
Vogelsberg said in his motion to appoint a guardian ad litem that he suffers from several
mental health conditions. See Dkt. 96. I explained in the order denying that motion that the
evidence Vogelsberg cited related to those conditions either showed that they were under
control or simply failed to show that Vogelsberg’s litigation abilities were impaired. Dkt. 104.

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Although Vogelsberg has objected to the conclusions in that order multiple times, see Dkt. 106
and Dkt. 108, he hasn’t submitted any additional evidence.
2. Vogelsberg’s filings
A review of Vogelsberg’s court filings reveals a litigant who is smart and capable.
Vogelberg’s complaint was clear, well organized and demonstrated an understanding of the law.
He asserted 16 counts against a dozen different defendants, including municipal defendants
Dane County and Correct Care Solutions. He cited relevant statutes and constitutional
provisions, showing that he understood all of them. He clearly articulated the legal theories
underlying all of his claims Even the remedies section of his complaint was well developed and
included detailed requests for declaratory and monetary relief. I allowed him to go forward on
the majority of the claims that he asserted. Dkt. 8.
After the screening order but before the preliminary pretrial conference, Vogelsberg had
the wherewithal to send the court a letter asking for copies of local rules and procedures. Dkt.
25.
Throughout the case, Vogelsberg has filed numerous motions any time he wants
assistance from the court. He has filed motions about: access to the prison law library, Dkt. 39;
defendants’ alleged failures to provide discovery, Dkts. 39, 84, 86; extensions of time for the
expert disclosure deadline, Dkts. 44, 47, 50; filing documents under seal, Dkt. 58 and Dkt.
100; staying the case to while he tries to get a lawyer to represent him, Dkt. 63.
Some of these motions show a level of sophistication well above that of most pro se
litigants. In Vogelsberg’s motions for an extension of time to find an expert, Vogelsberg
understood the potential importance of expert testimony on his state-law claim and he
accurately predicted that defendants would seek to dismiss that claim for lack of expert

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testimony. 1 In his motions related to sealing docket entries, Vogelsberg showed awareness of
confidentiality concerns and his rights under HIPAA to keep medical information private.
In the motion to strike his deposition, Dkt. 111, Vogelsberg made a creative argument
about defendants’ failure to comply with Rule 30 before taking his deposition. Although I
denied the motion to strike for lack of prejudice, the motion nevertheless demonstrates detailed
knowledge of the federal rules and an ability to understand technical legal issues.
On the other hand, there are two documents in which Vogelsberg says that he doesn’t
understand the litigation process. I am referring specifically to: (1) the letter he filed on July
15, 2019, Dkt. 94, in which he said he didn’t know what to do when he received defendants’
opposition to his Rule 56(d) motion; and (2) the letter he filed in which he says he doesn’t
know what summary judgment is, Dkt. 109.
Vogelberg’s explanation for this discrepancy is that most of his filings were prepared by
someone else. I will discuss that issue next.
3. Assistance from a jailhouse lawyer
Vogelsberg consistently alleges that nearly all of his documents were drafted by another
prisoner. And he has alleged multiple times that he needs court assistance because he no longer
has access to a jailhouse lawyer. Magistrate Judge Stephen Crocker first noted this in a text
order from more than a year ago. Dkt. 37 (“Vogelsberg explained that he had received
assistance from another inmate preparing his complaint, but that inmate has moved and he

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For this reason, I am not requiring Vogelsberg to respond to Correct Care’s argument that
Vogelsberg needs an expert to support his state-law claim that defendant Young Kim
inappropriately prescribed naproxen and a blood-thinning drug at the same time. See Dkt. 104,
at 5. Once I resolve the summary judgment motions as to Vogelsberg’s other claims, I will
decide the appropriate next steps for that state-law claim.

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doesn't know where to find him.”). And each time Vogelsberg refuses to meet a deadline, he
relies on the same excuse. Dkt. 94 (“The guy that was helping me moved and I’m looking
around, but nobody seems very helpful.”); Dkt. 109 (“I can’t seem to find anyone to explain
to me what [summary judgment] is or how to respond to [defendants’ motions]. There are not
any ‘jailhouse lawyers’ around that have much input on what I am supposed to do.”).
None of Vogelsberg’s documents in this case were signed by another prisoner or
otherwise identify another prisoner by name. And there is strong evidence that undermines the
accuracy of Vogelberg’s allegations that he doesn’t know what to do and can’t find anyone to
help him: the timing of Vogelberg’s requests for help. The only time Vogelsberg says that he is
unable to find a jailhouse lawyer to help him is when he is supposed to be complying with a
court deadline. But then, only a few days later, he’ll file a new motion purportedly prepared by
a jailhouse lawyer. For example, on July 15, Vogelsberg said he couldn’t find a jailhouse lawyer
to help him prepare his reply brief in support of his own Rule 56(d) motion. Dkt. 94. But then
on July 26, he filed a lengthy motion to appoint a guardian ad litem, which clearly was prepared
by someone who was skilled and knowledgeable. Dkts. 96–99. And on September 4, Vogelsberg
said he couldn’t find anyone to help him with summary judgment. Dkt. 109. But then on
September 10, he filed his motion to strike the deposition transcript, which, again, was filed
by someone who seemed to understand the law well. Dkt. 111. Vogelsberg hasn’t explained
how he is unable to find help to comply with court deadlines, but he can find help to file
detailed and sophisticated motions that he wasn’t required to file.
Also, as will be discussed further below, Vogelsberg’s performance at his depositions
shows that he is savvy, knowledgeable, and articulate. His statements at the two recent
telephone conferences support the same conclusion. Regardless whether Vogelsberg is trained

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in the law, he is both resourceful and capable, which undermines his allegation that he is unable
to prepare a summary judgment response or find the necessary assistance on his own.
4. Vogelsberg’s deposition
Both sets of defendants deposed Vogelsberg in April 2019 at the same time and a copy
of the transcript is in the record. Dkt. 68. I have reviewed the deposition and it doesn’t reveal
that Vogelsberg is mentally deficient in any way.
Vogelsberg starts the deposition by objecting to it on technical grounds that defendants
didn’t get proper approval for the depo. Id. at 5–13. (This is the subject of Vogelsberg’s motion
to strike the deposition. Dkt. 111.) Again, this suggests a level of legal sophistication possessed
by few pro se parties.
Vogelsberg states in the deposition that his schizophrenia medication keeps him drowsy
and impairs his memory. Dkt. 68, at 15:35. But I detected no evidence of that in the
deposition. He demonstrated a thorough and precise familiarity with the complaint. He cited
specific allegations from the complaint. Id. at 74:2–3. He discussed specific discovery responses.
Id. at 78:2–10. He cited specific pieces of evidence in support of his claims. Id. at 87:20–88:2.
He demonstrated impressive knowledge of his own medical conditions and seemed to
be comfortable talking about fairly technical aspects of those conditions. For example, he
described in detail an “aortic stenosis” he had as a child. Id. at 26:12–23. He later described a
cardiac procedure that he needs. Id. at 31:2–16.
He was able to point to minor discrepancies in a timeline he provided the defendants,
which undermines a memory problem and shows attention to detail. Id. at 61–63.
In sum, Vogelsberg’s testimony shows that he is smart, competent, and able to litigate
a case better than many pro se litigants.

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5. Credibility concerns
Vogelsberg’s credibility about his own abilities is also called into question by other
representations that Vogelsberg has made in this case. First, Vogelsberg complained in his Rule
56(d) motion that he didn’t have access to his own medical records. Defendants represented
in response to his motion that they had already given him those records. And Vogelsberg
referred to his medical records multiple times during his deposition. For example, when asked
what materials he relied on when drafting his complaint, Vogelsberg said “CCS’s own medical
records.” Dkt. 68, at 23:5–10. Later, when he was looking at a particular document, he said
that the document wasn’t “in my copy of medical records.” Id. at 66:13–15. And when
discussing his allegation that defendant Kim put him in segregation to retaliate against him,
Vogelsberg stated that “the medical record indicates that he had something to do with it.” Id.
at 82:2–11. These statements from the deposition are inconsistent with Vogelsberg’s allegation
in his Rule 56(d) motion that he didn’t have his medical records. And he hasn’t explained why
he was aware of those records at his deposition, but then claimed not to have them when it
was time to respond to defendants’ summary judgment motions.
Second, in his motion to appoint a guardian ad litem, Vogelsberg said that the court’s
refusal to grant an extension of time was “one of the main reasons” that attorney Walter Stern
declined to take his case. Dkt. 96, at 4–5. Vogelsberg repeated that allegation at the September
12, 2019 telephone conference. But that allegation is contradicted by the record. First, I
explained to Vogelsberg in April 2019 that any lawyer who agreed to take his case could ask
the court to adjust the schedule. Dkt. 64. Because Vogelsberg later notified Stern of that order,
Dkt. 84-1, it seems unlikely that any concerns about the schedule motivated Sterns’s decision.
Second, Stern filed a letter with the court explaining why he didn’t take the case. Specifically,

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Stern said that he is “simply too busy to take the case and [is] beginning to retire from the
practice of law.” Dkt. 89. He said nothing about wanting to take the case if the court would
grant a larger extension of time to respond to the summary judgment motions.
On their own, these statements by Vogelsberg might not be significant. But combined
with the other evidence, they raise questions about Vogelsberg’s credibility and his allegations
about his ability to litigate this case without a lawyer.
6. Conclusion
Looking at all of the evidence together, I am not persuaded that Vogelsberg is unable
to litigate this case on his own. So I adhere to my previous conclusion that this is not one of
the relatively few cases in which court assistance in recruiting counsel is appropriate. See Pruitt
v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (pro se plaintiff is not entitled to court
assistance in recruiting counsel unless the cases is too complex or difficult for someone with
the plaintiff’s abilities).

ORDER
IT IS ORDERED that:
1. Plaintiff Jeffrey Vogelsberg’s motion to strike his deposition, Dkt. 111, is DENIED.
2. Vogelsberg may have until December 18, 2019, to file his response to defendants’
motions for summary judgment. Defendants may have until January 4, 2020, to file
a reply. No further extensions will be granted.
Entered September 19, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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