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

Filing 86

ORDER denying plaintiff Robert Earl Alexander's 83 , 84 requests for subpoena forms. Signed by District Judge James D. Peterson on 6/29/2018. (jef),(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 is an inmate at the Dodge Correctional Institution
(DCI) who has been diagnosed with throat cancer. He is proceeding on Eighth Amendment
deliberate indifference claims against defendants Nathan Tapio (his previous primary care
provider) and Roman Kaplan (his current primary care provider), whom he alleges have failed
to treat his cancer and given him insufficient pain medication. A July 6, 2018 hearing is
scheduled on his motions for preliminary injunctive relief regarding his pain medication dosage,
Dkt. 22 and Dkt. 36.
In a June 20, 2018 order, I noted that earlier that month, Alexander indicated that
“DCI officials recently confiscated all of his medical records.” Dkt. 75, at 4. I instructed
defendants to look into the matter, as Alexander’s filing raised a potential access-to-the-courts
issue. Defendants have done so. They explain that DCI officials “temporarily removed”
Alexander’s medical records from his cell because he didn’t have “a disbursement receipt for
them,” but that the records were returned to Alexander on June 7. Dkt. 82, at 1. And
defendants have taken the extra precaution of “mailing a Bates stamped copy of the medical
records to” Alexander in advance of the July 6 hearing. Id. at 2. They have provided an identical
copy to the court, too. It appears that Alexander’s loss of access to his records was brief and is

no longer a live issue. I am satisfied that Alexander’s right of access to the court is not being
denied.
On June 28, the court received two new filings from Alexander. Dkt. 83 and Dkt. 84. I
will briefly address the concerns listed in these new filings. First, Alexander asks me to order
defendants to produce evidence that Alexander mailed to the court signed copies of his earlier
filings. Dkt. 83, at 2. The court has received those signed copies. See Dkt. 76, Dkt. 77, and
Dkt. 80. Even if it hadn’t received them, there would be no need to obtain evidence that
Alexander signed and mailed them.
Second, Alexander asks whether the court is still attempting to recruit counsel to
represent him. Dkt. 83, at 2. The answer is yes. I cannot guarantee that a lawyer will agree to
represent Alexander pro bono, but the court is trying to find someone willing to do so. It
appears that Alexander’s complaints about the competency exam performed by defendants are
premised on a mistaken belief that I will not recruit counsel because Alexander was found
competent. That is not the case, so I will not address the competency exam further.
Third, Alexander asks once again that I issue subpoenas to several prison officials and
medical professionals. Id. at 4–5 and Dkt. 84, at 2. But he still doesn’t state that he has asked
these individuals to testify, that they have refused to do so voluntarily, or that he will be able
to pay the required witness fee. As I have explained before, without an affidavit stating these
three things for each potential witness, I will not issue any subpoena forms. See Dkt. 75, at 2–
3.
Fourth, Alexander contends that in my June 20 order, I incorrectly assumed that
Alexander attended a follow-up appointment on May 1, 2018, with Dr. Ticiana Leal.
See Dkt. 75, at 3. He acknowledges that there is a medical record indicating that this

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appointment was scheduled, and he states that he was summoned for an “off-site medical
appointment” around that time. Dkt. 83, at 9. But he says that he didn’t actually meet with
Dr. Leal and that defendant Roman Kaplan falsified the record about the meeting because “Dr.
Kaplan is intentionally trying to kill” him. Id. Alexander’s explanation is confusing, and I will
not attempt to sort out this issue now. As I explained in my June 20 order, the parties may
address this issue at the July 6 hearing as part of a more general update on the status on
Alexander’s treatment. See Dkt. 75, at 3.
Finally, Alexander continues to focus on whether he is terminally ill. He implies that it
is my “job . . . to find this answer out for” him. Dkt. 84, at 3. I cannot diagnose Alexander. My
role is limited to deciding cases or controversies properly before the court. In Alexander’s case,
that means my job is to determine—or to preside over a trial so that a jury may determine—
whether defendants have violated the Eighth Amendment by failing to adequately treat his
cancer or by failing to give him sufficient pain medication.

ORDER
IT IS ORDERED that plaintiff Robert Earl Alexander’s requests for subpoena forms,
Dkt. 83 and Dkt. 84, are DENIED.
Entered June 29, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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