Jackson, Raynard et al v. Hoem, Stacey et al

Filing 80

ORDER that plaintiff Raynard Jackson's motion for reconsideration (dkt. # 62 ) is DENIED. Plaintiff's motion to appoint counsel (dkt. # 65 ) is DENIED without prejudice. Plaintiff's motion for recusal (dkt. # 74 ) is DENIED. Defendants ' motion to compel (dkt. # 68 ) is GRANTED to the extent set forth in this order. Plaintiff Raynard Jackson has until December 14, 2021, to file a signed medical records authorization on the form provided by defense counsel authorizing di sclosure of his medical records from all DOC institutions from May 1, 2012, through May 22, 2014, or show additional cause as to why he has chosen not to file the modified authorization. Plaintiff's motion for sanctions (dkt. # 72 ) is DENIED. P laintiff's motion opposing defendants' motion to stay (dkt. # 59 ) is DENIED as moot. The clerk of court is directed to set this matter for a scheduling conference with Magistrate Judge Stephen Crocker to take place no sooner than December 21, 2021. Signed by District Judge William M. Conley on 11/23/2021. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RAYNARD R. JACKSON,
Plaintiff,

OPINION AND ORDER

v.
18-cv-237-wmc
DANE ESSER, DARRYL FLANNERY
and BETH EDGE,
Defendants.
Pro se plaintiff Raynard Jackson is now proceeding in this lawsuit against three
employees of the Wisconsin Department of Corrections (“DOC”) working at its Secure
Program Facility (“WSPF”). Specifically, plaintiff was granted leave to proceed against
these defendants on Eighth and Fourteenth Amendment claims arising out of the
conditions of his confinement at WSPF between May 22 and 28, 2013. On April 28,
2021, the court granted in part and denied in part defendants’ motion for partial summary
judgment on the ground that Jackson failed to exhaust his administrative remedies with
respect to some of his claims (dkt. #41) and denied Jackson’s motion for sanctions (dkt.
#49). (Dkt. #60.) As a result, the court also dismissed without prejudice the only claims
Jackson was pursuing against additional defendants Hoem, Suthers, Boisen, Cockroft and
Jones.
Plaintiff Jackson responded to those rulings by requesting reconsideration (dkt.
#62), appointment of counsel (dkt. #65), and my recusal from this case (dkt. #74).
Pending as well is the remaining defendants’ motion to compel plaintiff to sign an
authorization for release of his health records maintained by the DOC (dkt. #68) and

plaintiff’s renewed motion for sanctions (dkt. #72).1 For the reasons that follow, the court
will deny plaintiff’s new motions, although his motion for recruitment of counsel will be
denied without prejudice. The court will also grant defendants’ motion to compel.

OPINION
I.

Plaintiff Jackson’s Motions
A. Reconsideration
As noted, the court granted defendants’ motion for partial summary judgment in its

prior order with respect to claims of deliberate indifference under the Eighth Amendment
and of class-of-one, equal protection claims under the Fourteenth Amendment, all asserted
against now dismissed defendants Hoem, Boisen, Suthers, Cockroft and Jones arising out
of his alleged inability to access running water from May 22-28.

Plaintiff’s Eighth

Amendment claims related to plaintiff’s allegedly being placed in a cell with feces on the
walls, exposed to incapacitating agents, and desired access to his inhaler and nasal spray.
The court also denied plaintiff’s motion for sanctions based on his so-called hearsay
challenge to the declaration of WSPF’s litigation coordinator, Ellen Ray, who
authenticated Jackson’s relevant inmate complaints and detailed her involvement in
processing those complaints.

The court similarly rejected Jackson’s unsubstantiated

charges of fraud and conspiracy against Ray.

Since Jackson indicated that he would object to any order issued by Magistrate Judge Stephen
Crocker (see dkt. #71, at 4), the court will going forward address in the first instance any discoveryrelated motions as well.
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While plaintiff seeks reconsideration of a number of the court’s ruling rulings, he
fails to identify a specific error of law or fact justifying reconsideration. Instead, plaintiff
merely disagrees with the court’s conclusions that: (1) none of his inmate complaints
adequately alerted prison officials that defendants Hoem, Suthers, Boisen, Cockroft and
Jones (or anyone other than non-defendant Lebbeus Brown and defendant Esser) were
aware of and failed to address the lack of water in his cell; and (2) he never raised concerns
about other conditions of his confinement beyond the absence of water. Plaintiff also
asserts that the court ignored his submissions in opposition to defendants’ motion for
partial summary judgment and in support of his motion for sanctions, pointing to exhibits
indicating that litigation coordinator Ray confirmed plaintiff had exhausted claims set
forth in multiple inmate complaints.
As plaintiff argues, Ray did confirm that plaintiff exhausted some inmate complaints,
including several that are part of the record in this case -- WSPF-2013-10448, WSPF2013-10449, WSPF-2013-13616, WSPF-2014-131, and WSPF-2013-10776. (See dkt.
##13-2, 13-3, 13-4.) However, pointing out that Ray acknowledged plaintiff having
followed WSPF’s exhaustion procedures for numerous, other inmate complaints is not
evidence that he exhausted those procedures as to the dismissed claims in this lawsuit. In
any event, the court’s April 28th opinion expressly addressed whether those inmate
complaints served to exhaust the specific claims in this lawsuit, finding that inmate
complaints WSPF-2013-10448, WSPF-2013-10449, and WSPF-2013-10776 did not.
Instead, those complaints concerned: non-defendant Brown’s decision to turn off the water
in the cell; defendant Esser’s refusal to turn it back on; defendant Edge’s refusal to treat

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plaintiff’s severe dehydration after he was removed from his cell; and defendant Flannery’s
and Suthers’ alleged failure to provide plaintiff medical attention after he complained
above chest and back pain. (Dkt. #60, at 4-7.) As for plaintiff’s other complaints -- WSPF2013-16033 and WSPF-2013-13616 -- those did not relate to plaintiff’s claims in this
lawsuit at all. Instead, plaintiff challenged a conduct report he received in WSPF-201316033 (dkt. #47-22), and complained that Hoem lied in a report from June 28, 2013, in
WSPF-2013-13616 (dkt. #47-17). Finally, plaintiff wholly fails to explain how these
complaints served to exhaust any of his dismissed claims.
Plaintiff further claims the court ignored his claim that litigation coordinator Ray
refused to process five inmate complaints about his conditions of confinement in his cell,
pointing to two Interview/Information Requests he submitted to Ray in June of 2013 and
2016, respectively. (Dkt. ##47-6, 47-7.) However, the court noted that plaintiff raised
an argument about the unavailability of the inmate complaint system, but rejected it
because he offered no evidence detailing the nature of those complaints he was supposedly
prevented from submitting, and in any event, plaintiff successfully filed five, other inmate
complaints that were processed. Moreover, plaintiff fails to direct this court to a previous
filing improperly rejected, much less proof that he appealed from that wrongful rejection.
As importantly, Jackson does not detail the actual allegations supposedly set forth in these
rejected inmate complaints or when he submitted them for review. Instead, plaintiff refers
the court to Interview/Information Requests he submitted to Ray inquiring about inmate
complaints that had been expressly rejected in writing. Because Jackson did not detail the
allegations he was attempting to bring in those inquiries, there is no basis to reasonably

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infer that he actually followed the available procedures related to his previously dismissed
claims.
Plaintiff further incorrectly claims that the court ignored his arguments challenging
Ray’s declaration in this case. On the contrary, the court rejected plaintiff’s argument that
Ray’s declaration amounted to inadmissible hearsay, since the statements in her affidavit
were not offered for the truth of the matter asserted, but rather to assess the scope of
Jackson’s actual grievances. (See dkt. #60, at 7 n.2.)
Finally, plaintiff insists that the court failed to read his filings, which is also not
true. Accordingly, the court must deny Jackson’s ill-conceived motion for reconsideration,
as well as his requests for a hearing and sanctions.
B. Appointment of counsel
Jackson also renews his request for appointment of counsel. However, as this court
has previously explained, civil litigants have no constitutional or statutory right to the
appointment of counsel. E.g., Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67
(7th Cir. 2013); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997). Certainly, the court
may in its discretion decide to help recruit counsel to assist an eligible plaintiff who is
proceeding under the federal in forma pauperis statute. See 28 U.S.C. § 1915(e)(1) (“The
court may request an attorney to represent an indigent civil litigant pro bono publico.”) But
the central question is “whether the difficulty of the case—factually and legally—exceeds
the particular plaintiff’s capacity as a layperson to coherently present it to the judge or jury
himself.” Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007).

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Plaintiff’s grounds for recruitment of counsel in this case are that: (1) he has no
legal training and his reading is impaired; (2) he takes psychotropic medication to address
various psychological disorders; (3) the prisoner who had been helping him in this lawsuit
at WSPF has been separated from Jackson; (4) this court has appointed counsel for him in
a previous case; (5) this case is complex and might require expert witness testimony. To
begin, the court has concerns about the accuracy of this filing, since Jackson is incarcerated
at Waupun not WSPF, and some of his representations appear formulaic, rather than a
genuine description of his capabilities. Even assuming some discrepancies was due to a
clerical or transcription error, as the court has already observed, plaintiff’s filings to date
suggest that he is capable of litigating this case without an attorney. Indeed, the materials
plaintiff submitted in opposition to defendants’ motion for summary judgment, as well as
his more recent motions and responses to defendants’ motions, suggest a clearer
understanding of the legal standards governing exhaustion and his obligation to disclose
his medical records than most pro se prisoners litigating before this court.
Moreover, nothing in the record suggests that plaintiff does not recall the facts
relevant to his claims. Furthermore, as the court also previously noted, the assistance of
another prisoner in preparing submissions to the court neither weighs in favor of or against
the decision to recruit counsel. See Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014)
(“[T]he fact that an inmate receives assistance from a fellow prisoner should not factor into
the decision whether to recruit counsel.”). In short, the court remains unpersuaded that
plaintiff needs an attorney to litigate his claims at this stage, and will deny plaintiff’s
motions without prejudice to his ability to renew his request for assistance in recruiting

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counsel at a later date should the tasks associated with litigating this case become
unmanageable.

C. Recusal
Finally, plaintiff asks that I recuse myself from this case, a request which must be
denied as groundless. Under 28 U.S.C. § 455(a), I am required to recuse myself from “any
proceeding in which [my] impartiality might reasonably be questioned.” Although I have
a duty to recuse myself when presented with valid reasons, I also have a duty to refuse to
recuse myself when justification is lacking. N.Y. City Hous. Dev. Corp. v. Hart, 796 F.2d
976, 980 (7th Cir. 1986). Plaintiff maintains that I am biased against him because I have
ignored many of his filings. As explained above, however, the court’s opinions and orders
did not always need to detail every aspect of Jackson’s filings and arguments to resolve
defendants’ motion. Regardless, while Jackson is free to appeal any of my rulings that may
be against him, that I did not find in his favor is not a basis for recusal. See Liteky v. United
States¸510 U.S. 540, 555 (1994). Therefore, his motion will be denied.

II.

Defendants’ motion to compel and plaintiff’s motion for sanctions
This just leaves defendants motion to compel plaintiff to sign a modified medical

release authorization and plaintiff’s renewed motion for sanctions. Specifically, defendants
explain that as a result of an oversight, defense counsel does not have an adequate
authorization from Jackson to give them access to his health records needed to litigate this
case, and he now refuses to provide one. In May of 2020, defense counsel sent Jackson a

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medical authorization, but he declined to sign it. Instead, on June 15, 2020, Jackson
returned a different form, a DOC-1163A Authorization for Use and Disclosure of
Protected Health Information (“PHI”) form, without a signature page. Beyond lacking a
signature, the authorization attempts to limit the records defendants could obtain to those
created between May 1, 2013, to May 1, 2014. Unfortunately, defense counsel did not
immediately realize that plaintiff’s signature page was missing or that his authorization
was unreasonably limited as to time frame. Rather, counsel represents that a year passed
before they realized the issue.
On May 20, 2021, after realizing that plaintiff’s authorization would not permit
access to needed documents, defense counsel arranged for a new authorization to be
delivered to Jackson, and on May 21, 2021, counsel notified Jackson of her intent to take
his deposition.

On May 25, 2021, however, Jackson declined to sign the medical

authorization and instead returned another DOC-1163A form, again limiting the
timeframe to records from May 22, 2013, to May 22, 2014, and the disclosing agency to
the Health Services Unit at Waupun where Jackson was incarcerated in 2013.
Defendants are correct in asserting that given the scope of plaintiff’s claims, they
are entitled to information about Jackson’s medical and psychological history before the
events that occurred in May of 2013, particularly to determine whether Jackson had any
pre-existing injuries.

Defense counsel maintain that they are further entitled to

information beyond May of 2014 to determine how long any injury lasted and whether it
was permanent. That said, defendants are willing to compromise, proposing a time frame

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of May 1, 2012, to May 22, 2014, but ask that Jackson complete the authorization sent
by defense counsel, not the DOC authorization he has now returned twice.
In opposition, plaintiff has still not explained why he failed to authorize this broader
time frame or use the authorization provided by defense counsel, much less sign the form,
focusing instead on defense counsel’s delay, casting it as a ploy to disrupt the trial schedule
as opposed to a legitimate attempt to discover relevant information. Plaintiff further
complains that defendants already have filed his medical records in this case, despite the
fact that he did not authorize the disclosure of those records. Since Jackson’s second
argument relates more directly to his motion for sanctions, the court focuses first on
plaintiff faulting defendants admittedly substantial delay in pursuing this discovery,
However, the court has no basis to doubt defense counsel’s sincerity in representing that
their oversight was caused by a lack of diligence, not bad faith. Moreover, their discovery
request appears reasonable. Therefore, although the court expects defense counsel to avoid
similar mistakes in the future, this omission does not preclude them from relief.
Accordingly, the court will direct plaintiff to file promptly with the court under seal a
modified authorization permitting defendants’ to access records from May 1, 2012, to
May 22, 2014, from all DOC institutions. Jackson is to file that updated authorization
no later than December 14, 2021. If Jackson needs another copy of the authorizations
previously sent to him, he should promptly contact defendants’ counsel to obtain a copy
for his review and authorization.
To be clear, however, the court is not ordering Jackson to provide this authorization,
since the court does not generally compel adverse parties to disclose confidential, medical

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records if they choose not to do so. However, Jackson needs to understand that his
continued failure to comply would prevent him from seeking monetary damages for any
physical or emotional damages suffered as a result of his conditions of confinement in May
of 2013, unless he allows defendants to access medical records related to his physical and
emotional conditions prior to the events that took place in May of 2013, and for a year
after that date. If Jackson chooses not to provide this disclosure, then the court would
have no choice but to preclude Jackson from pursuing damages related to any physical or
emotional injuries he suffered as a result of those conditions of confinement.
For a similar reason, the court will deny Jackson’s motion for sanctions against AAG
Remington and Ellen Ray. Jackson seeks sanctions because in July of 2020, defendants
attached to their motion for partial summary judgment two documents from his medical
file that he had not authorized be disclosed -- certain medical records from May 27 and
31, 2013. (See dkt. ##73-1, 73-2.) However, these documents were not part of Jackson’s
medical file; instead, they were attachments to Jackson’s inmate complaints related to his
own efforts to obtain medical care after he was housed without water in his cell. Moreover,
given that Jackson has already filed one of the documents (the May 27, 2013, record) as
an attachment to his amended complaint (see dkt. #13-8), there is no basis to infer bad
faith on the part of defense counsel in filing them.
In any event, while Jackson has an interest in protecting the confidentiality of his
medical records as acknowledged above, he waives that interest at least in part by filing a
lawsuit alleging claims or seeking damages arising out of his medical care. Since there is
no federal common law physician-patient privilege and under Wisconsin law, that privilege

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has been waived under Wis. Stat. § 905.04(4)(c), he will have to relinquish the records or
face sanctions, up to and including dismissal of his case. Ammons v. Gerlinger, No. 06-C20-C, 2007 WL 5659413, at *2 (W.D. Wis. Mar. 12, 2007). Indeed, since the sole
function of the authorization is to permit Jackson’s medical record custodian to disclose his
records to third parties, defense counsel arguably has no obligation to seek Jackson’s
authorization to obtain and file medical records that relate to his claims in this lawsuit.
For all these reasons, the court must deny Jackson’s motion for sanctions.

ORDER
IT IS ORDERED that:
1) Plaintiff Raynard Jackson’s motion for reconsideration (dkt. #62) is DENIED.
2) Plaintiff’s motion to appoint counsel (dkt. #65) is DENIED without prejudice.
3) Plaintiff’s motion for recusal (dkt. #74) is DENIED.
4) Defendants’ motion to compel (dkt. #68) is GRANTED to the extent set forth
above. Plaintiff Raynard Jackson has until December 14, 2021, to file a signed
medical records authorization on the form provided by defense counsel
authorizing disclosure of his medical records from all DOC institutions from
May 1, 2012, through May 22, 2014, or show additional cause as to why he
has chosen not to file the modified authorization.
5) Plaintiff’s motion for sanctions (dkt. #72) is DENIED.
6) Plaintiff’s motion opposing defendants’ motion to stay (dkt. #59) is DENIED
as moot.

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7) The clerk of court is directed to set this matter for a scheduling conference with
Magistrate Judge Stephen Crocker to take place no sooner than December 21,
2021.
Entered this 23rd day of November, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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