Henry, Marcus et al v. Stetter et al

Filing 29

ORDER denying 21 Motion for Assistance in Recruiting Counsel; denying 23 Motion for Issuance of Subpoenas; granting 22 Motion for Extension of Time. Plaintiff's expert disclosures are now due December 6, 2018. Defendants may have until January 13, 2019, to supplement their already-filed disclosures. Signed by District Judge James D. Peterson on 11/19/2018. (jef),(ps)

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

MARCUS HENRY,
Plaintiff,

ORDER

v.
NURSE STETTER and JAIME BARKER,

17-cv-673-jdp

Defendants.
Plaintiff Marcus Henry, appearing pro se, is an inmate at Green Bay Correctional
Institution. He alleges that when he was incarcerated at New Lisbon Correctional Institution,
defendant nurses Stetter and Jaime Barker intentionally failed to get him prompt treatment for
surgical stitches that had come undone, causing him a more painful recovery.
In a July 25, 2018 order, I denied Henry’s motion for the court’s assistance in recruiting
him counsel, both because he had not shown that he had contacted three lawyers about
representing him, and because it was too early to tell whether the case would be too complex
for Henry to litigate himself.
The next day, Henry filed another motion for recruitment of counsel, Dkt. 21, in which
he includes letters from two attorneys who have declined to represent him, and a third letter
from a lawyer who requested more information from him. Henry does not explain whether he
has communicated with this lawyer further. I encourage him to do so.
Even I concluded from this submission that Henry has met his burden to show that he
attempted to recruit counsel himself, I would deny his current motion because I am still not
persuaded that the case will be too complex for him. Henry says that he lacks legal knowledge
and that it is difficult to access library materials. These barriers are common among pro se

prisoner litigants and are not in themselves reason to recruit counsel. Should Henry find that
his ability to meet court deadlines is hampered by a lack of access to the law library, he should
write the court about that and seek an extension of the relevant deadline. And it is still unclear
whether the case will truly boil down to issues that are too complex for him to litigate.
Henry has also filed a letter that I construe to be a motion for an extension of time to
provide his expert-witness disclosures until his motion for recruitment of counsel is decided.
Dkt. 22. I will grant that request: his new deadline is December 6, 2018, and defendants may
have until January 13, 2019, to supplement their already-filed disclosures.
Finally,

Henry

seeks

to

subpoena

three

potential

witnesses:

Dr.

Martin,

Dr. Lewandowski, and Nurse Johnson. Dkt. 23. Henry does not say whether he intends to
subpoena them for depositions or for trial itself. If he means to depose these people, he will be
required to pay the court reporter costs and witness fees. If he means to have them appear at
trial, it is premature to consider the question because the case has not yet even reached the
summary judgment stage. If he did eventually seek to subpoena them for trial, he would have
to pay the daily witness fee and mileage costs. Given the meager funds in Henry’s trust fund
account—his average monthly balance was 11 cents when he filed this lawsuit, see Dkt. 6—it
seems unlikely that he would be able to afford either option. I will deny his motion without
prejudice, but Henry is free to refile his motion and explain in more detail which purpose he
needs subpoenas for and whether he is prepared to pay the applicable fees.
In the meantime, I encourage Henry to contact any third party witness to see whether
they would be willing to provide him with a written affidavit or declaration setting forth their
testimony, and if the case heads to trial, whether they would be willing to testify voluntarily,
so that Henry would not have to pay the associated fees and costs. I note that Lewandowski

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and Johnson appear on defendants’ expert-witness list, Dkt. 26, so Henry should also contact
defendants to see whether they are already planning on having these witnesses come to trial.

ORDER
IT IS ORDERED that:
1. Plaintiff Marcus Henry’s motion for the court’s assistance in recruiting him counsel,
Dkt. 21, is DENIED without prejudice to him renewing his motion in the future.
2. Plaintiff’s motion for an extension of time to disclose his expert witnesses, Dkt. 22,
is GRANTED. New expert-disclosure deadlines are listed in the opinion above.
3. Plaintiff’s motion for subpoenas, Dkt. 23, is denied without prejudice.
Entered November 19, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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