Alexander, Robert et al v. Foster, Brian et al

Filing 154

ORDER that the stay in this case is LIFTED. Plaintiff Robert Earl Alexander may have until January 13, 2020 to inform the court in writing whether he wishes to: (1) continue litigating the case but without counsel; or (2) dismiss the case without prejudice. Signed by District Judge James D. Peterson on 12/20/2019. (rks),(ps)

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

ROBERT EARL ALEXANDER,
Plaintiff,
v.
NATHAN TAPIO and ROMAN KAPLAN,

ORDER
17-cv-861-jdp

Defendants.
Pro se plaintiff Robert Earl Alexander, a prisoner in the custody of the Wisconsin
Department of Corrections, is proceeding on Eighth Amendment medical care claims against
two prison medical providers who he says failed to treat his throat cancer and gave him
inadequate dosages of pain medication. In May 2018, I began attempting to recruit counsel for
Alexander. See Dkt. 65. The case has now been stayed for over a year and a half, during which
time the court has contacted members of the Western District of Wisconsin Bar Association
and the Seventh Circuit Bar Association on numerous occasions to seek assistance for
Alexander. In the meantime, Alexander has filed dozens of motions, letters, and miscellaneous
documents as well as a new lawsuit about unrelated issues. See Alexander v. Bovee, No. 19-cv427 (filed May 28, 2019).
Unfortunately, no lawyer has agreed to take the case and the court has exhausted its
options. There simply aren’t enough lawyers in this district with the time, willingness, or
expertise necessary to volunteer on behalf of the many pro se litigants seeking assistance. The
case cannot be stayed indefinitely. Alexander’s circumstances have changed as well. My
decision to stay the case and seek counsel for Alexander was motivated in part by submissions
indicating that Alexander was refusing available medical treatment for his cancer to preserve

his claims in this case. See Dkt. 65, at 2–3. Because this raised serious concerns about whether
Alexander was capable of making rational decisions, I deemed it appropriate to attempt to
recruit counsel to assist him. But in the year and a half that the case has been stayed, Alexander
has successfully completed his radiation treatment, see Dkt. 140, at 3, and a review of his recent
filings indicates that cancer treatment is no longer his chief concern. See Dkt. 148 and
Dkt. 153. Alexander’s many submissions to the court indicate that he is capable of
communicating in writing, despite his hearing and speaking challenges. This reassures me that
Alexander will be able to litigate his case at least through the summary judgment stage. If the
case survives summary judgment and proceeds to trial, Alexander may ask me to attempt to
recruit counsel a second time, as the court is sometimes more successful in recruiting attorneys
for cases that are trial-ready.
Alexander now has a choice: (1) proceed on his own without counsel; or (2) dismiss this
case without prejudice. I will give him a short deadline by which to tell the court how he wants
to proceed. If Alexander chooses the first option, I will ask Magistrate Judge Stephen Crocker
to set a new schedule for the case. After that, it will be up to Alexander to determine how to
litigate his claims. The court cannot provide legal advice. If Alexander chooses to dismiss the
case, the dismissal will be without prejudice, which means that Alexander could file a new case
at a later date. However, the statute of limitations would continue to run. Dupuy v. McEwen,
495 F.3d 807, 810 (7th Cir. 2007) (“[W]hen a suit is dismissed without prejudice, the statute
of limitations continues to run from the date (normally the date of the injury) on which the
claim accrued.”). If Alexander fails to respond by the deadline below, I will take his silence to
mean that he is choosing the second option and I will direct the clerk of court to close the case.

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ORDER
IT IS ORDERED that:
1. The stay in this case is LIFTED.
2. Plaintiff Robert Earl Alexander may have until January 13, 2020 to inform the court
in writing whether he wishes to: (1) continue litigating the case but without counsel;
or (2) dismiss the case without prejudice.
3. If Alexander chooses the first option, Magistrate Judge Crocker will issue a pretrial
conference order setting a new schedule for the case. If Alexander fails to respond
by January 13, 2020, I will take his silence to mean that he is choosing the second
option and I will direct the clerk of court to close the case.
Entered December 20, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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