Henry, Marcus et al v. Stetter et al

Filing 53

ORDER denying 50 , 52 Motions for Assistance in Recruiting Counsel; denying 51 Motion for Issuance of Subpoenas. The clerk of court is directed to send plaintiff Marcus Henry a copy of the court's order denying defendants' motion for summary judgment and the trial preparation order, Dkt. 45 and Dkt. 46 . Signed by District Judge James D. Peterson on 5/14/2019. (jef),(ps)

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

MARCUS HENRY,
Plaintiff,
v.
ANGELA STETTER and JAMIE BARKER,

ORDER
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 Angela Stetter and Jamie Barker intentionally failed to get him prompt
treatment for surgical stitches that had come undone, causing him a more painful recovery.
Trial is scheduled for June 3, 2019. Henry has filed a series of documents concerning
the case. Dkt. 50–52. He says that he learned at his deposition that the court had denied
defendants’ motion for summary judgment. Dkt. 50, at 1. I take him to mean that he did not
receive a copy of my April 26, 2019 order, Dkt. 45, so I will direct the clerk of court to send
another copy, along with another copy of the “trial preparation order” in which I explained
procedures that this court uses to conduct trials, Dkt. 46.
Henry says that he “never got a chance to depose the defendants.” Dkt. 50, at 1. But
in denying his previous request to subpoena witnesses, I explained that he would have to pay
the court reporter costs and witness fees. Henry did not follow up by suggesting that he
attempted to depose defendants or anyone else. He does not specifically ask for time to do so
or suggest that he would be able to pay for a deposition. So I will not address this issue further.

Henry says that defendants incorrectly state that Dr. Lewandowski performed his
surgery, when it was really Dr. Martin who performed it. He says that the court did not approve
Martin as a witness when he previously asked, instead approving Lewandowski. Dkt. 50, at 1.
Henry is incorrect about the court having approved Lewandowski or any witness: the court
does not consider which witnesses will be allowed to testify unless a party raises an objection
about a potential witness, or there is a reason to challenge a subpoena. In particular, I have not
approved or disallowed Drs. Lewandowski or Martin. In response to Henry’s previous request
to subpoena prison medical staffers including Lewandowski and Martin, I stated that he did
not appear to have sufficient funds to pay for reporter costs and witness fees, but that
Lewandowski was already listed on defendants’ expert-witness list, so he should contact
defendants to see whether they are already planning to have Lewandowski come to trial.
Dkt. 29, at 2–3.
As for Henry’s assertion that Martin—not Lewandowski—performed the initial surgery,
that is a factual matter that should be easy for the parties to resolve before trial. It is true that
defendants said in their summary judgment materials that Lewandowski performed the surgery,
but there is reason to believe that this is incorrect. Henry’s medical records show that he
explicitly consented to have Martin perform the surgery, and the biopsy results list Martin as
the “performing clinician.” Dkt. 34-1, at 41, 68. I encourage defendants to inform Henry if
they mistakenly identified the doctor in their summary judgment materials. If the parties
genuinely dispute who performed the surgery and they believe that the identity of the surgeon
is relevant, then they will have to present evidence at trial showing who actually performed the
surgery.

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Henry seeks to subpoena four witnesses: Dr. Martin, inmates Martize Sultan (Henry’s
cellmate during the events in question) and James Lee Powell (who saw Henry’s wound), and
correctional officer Cyle Keltner, Jr. (who saw blood from the wound soak through Henry’s
shirt). Dkt. 51. I take this to be a request for these proposed witnesses to testify at trial. But a
subpoena is necessary only when the proposed witness refuses to testify voluntarily. Henry
does not explain whether any of these proposed witnesses are willing to testify voluntarily or
refuse to do so. So I will deny his motion, but that denial is without prejudice to him renewing
it with more information, as explained in the preliminary pretrial conference order and the
attachments to the trial preparation order. See Dkt. 46-1, at 33.
In the case of non-inmates Martin and Keltner, Henry does not explain whether he is
willing and able to pay the daily witness fee and mileage costs. As I stated above, he does not
appear to be able to pay those fees. With regard to the proposed inmate witnesses, the same
fees do not apply, and the witnesses appear to have relevant information. Henry should contact
these witnesses and inform the court and defendants whether they agree to testify voluntarily.
Henry should also include these proposed witnesses on his forthcoming witness list. Depending
on what Henry submits as well as defendants’ input, I will consider whether to issue a subpoena
and whether to have them testify either in court or by videoconference.
Henry says that he needs to call expert witnesses but does not know how to do so.
Dkt. 50, at 1. I have already extended Henry’s deadline to disclose expert witnesses,
see Dkt. 29, but that deadline has long passed, so he cannot call an expert. In any event, this
case seems unlikely to hinge on expert testimony. The key issue is whether Henry’s surgical
stitches had popped: Henry says that defendants told him that they did, while defendants now
say that the stitches were intact. Henry should focus on providing whatever evidence he has to

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show that his stitches indeed popped. If he can prove that, he should be able to make the case
for defendants’ deliberate indifference without the aid of an expert.
Henry again asks for the court to recruit him counsel to represent him at trial. Dkt. 50
and Dkt. 52. He says that he has little legal knowledge and that he is currently taking Prozac,
which limits his cognitive abilities. He also states that he is unsure whether he will be ready by
the June 3 trial date.
I previously denied Henry’s motions to recruit him in part because I was not convinced
that the case would be too complex to handle. Nothing in his new filings changes my previous
analysis. This is a relatively simple case. It is common for pro se litigants in this court to be
receiving mental health treatment, and he does not provide enough detail about his
medication’s effect on him to be able to assess his capabilities. Henry’s filings have been
relatively focused and understandable and do not in themselves give me reason to consider
recruiting counsel for him.
Henry’s lack of legal knowledge is common, and this court has procedures to assist
pro se litigants understand how to prepare for and conduct a trial. I urge him to review the
court’s preliminary pretrial and trial preparation orders because they should answer questions
he has about his preparations. Also, I will hold two conferences before the June 3 trial date: on
May 22 I will explain further how the trial will proceed and I will field questions from the
parties, and on May 30 I will discuss my rulings on various pretrial matters.

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ORDER
IT IS ORDERED that:
1. The clerk of court is directed to send plaintiff Marcus Henry a copy of the court’s
order denying defendants’ motion for summary judgment and the trial preparation
order, Dkt. 45 and Dkt. 46.
2. Plaintiff’s motion for subpoenas, Dkt. 51, is DENIED without prejudice.
3. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 50 and
Dkt. 52, is DENIED without prejudice.
Entered May 14, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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