Brown, Larry v. Bellile, Doug et al

Filing 76

ORDER that plaintiff Larry J. Brown's motion to deny defendant's motion for summary judgment and his renewed requests for counsel (dkt. ## 73 , 74 ) are DENIED. Plaintiff's deadline to respond to defendants' motion for summary ju dgment is reset to April 19, 2022, with defendants' reply due April 29, 2022. The discovery cutoff is extended to May 2, 2022. All remaining case deadlines are STRICKEN. The court will hold a telephonic status and scheduling conference on June 17, 2022, at 10:30 a.m. Defendants are responsible for coordinating the call to Chambers at 608-264-5087. Signed by District Judge William M. Conley on 2/18/2022. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LARRY J. BROWN,
Plaintiff,

OPINION AND ORDER

v.
20-cv-337-wmc
DOUG BELLILE, DANIEL KATTENBRAKER,
LAURA THOMAS, LISA POUILLIE,
SARA DONOVAN, JOSEPH SCHMELZLE,
and DANIEL PARK,
Defendants.
Pro se plaintiff Larry J. Brown is proceeding under 42 U.S.C. § 1983 against several
Sand Ridge Secure Treatment Center staff members on Fourteenth Amendment medical
deliberate indifference claims related to an alleged skin condition and to ongoing trouble
swallowing and esophageal pain. Defendants have filed a motion for summary judgment.
(Dkt. #66.) Instead of an opposition brief, Brown filed a motion to deny summary
judgment (dkt. #74), indicating that he has been unable to complete some discovery.
Brown also filed a related letter (dkt. #73) challenging the magistrate judge’s October 14,
2021, order denying in part and granting in part plaintiff’s motion to compel (dkt. #63)
and asking to stay the case. In both submissions, plaintiff renews his request for assistance
with recruitment of counsel. For the following reasons, the court will deny plaintiff’s
requested relief. To alleviate plaintiff’s concerns about discovery, however, the court will
briefly extend the discovery cutoff and his response deadline, adjourn the remaining case
deadlines, and set this matter for a telephonic status and scheduling conference. If Brown
again fails to file a response, his claims will be subject to dismissal for failure to prosecute.

OPINION
To start, the court notes that plaintiff has made repeated requests for counsel
throughout this case, and the court has denied those requests. (See dkt. ##14, 22, 23, 29,
35, 47, 48.) He is thus well aware that while the court can help pro se litigants find a lawyer
to represent them, Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007), a party who wants
the court’s help must meet certain requirements. Santiago v. Walls, 599 F.3d 749, 760-61
(7th Cir. 2010). First, plaintiff must show that he is unable to afford counsel and that he
made reasonable efforts on his own to find a lawyer to represent him. As noted in the
court’s May 6, 2021, order, plaintiff has satisfied these requirements. (Dkt. #48 at 14.)
However, the court again concludes that plaintiff still has not shown that this is one
of the relatively few cases in which the legal and factual difficulties exceed his demonstrated
ability to prosecute it. Pruitt, 503 F.3d at 654-55. Again, as plaintiff well knows, the
“question is not whether a lawyer would present the case more effectively than the pro se
plaintiff,” but instead whether the pro se plaintiff can “coherently present [his case] to the
judge or jury himself.” Id. at 655. Here, plaintiff’s obligation is to oppose defendants’
motion for summary judgment using this court’s summary judgment procedures, which
involves responding to defendants’ proposed findings of fact by citing to admissible
evidence, and submitting an opposition brief. To that end, it is plaintiff who has personal
knowledge of his medical condition and treatment, and throughout this litigation, plaintiff
has submitted many motions and letters that have all been readable, articulate, and reflect
an understanding of the factual bases of his claims as well as the applicable legal standards.
He has also demonstrated a related ability to gather, sort and marshal evidence in selecting

2

exhibits in support of his complaint, and requests for counsel, injunctive relief, and leave
to pursue an interlocutory appeal. Plaintiff’s latest submissions cast no doubt on his ability
to continue to advocate for himself, including his ability to respond to defendants’
summary judgment motion.
In support of his position, plaintiff contends that he has been unable to complete
some discovery. But plaintiff should be aware from the court’s preliminary pretrial order
that discovery currently remains open in this matter through April 1, 2022, and the court
will briefly extend that deadline, so plaintiff can still serve discovery requests. (Dkt. #30.)
Even so, plaintiff will need to act quickly. Under the Federal Rules, a party generally has
30 days in which to respond to interrogatories, requests for productions of documents, and
requests for admissions, which are the methods commonly used by pro se litigants to obtain
discovery. See Fed. R. Civ. P. 33, 34, 36. Plaintiff will need to serve any discovery requests
on defendants promptly if he wants their responses before filing his response to their
summary judgment motion.
As for the magistrate judge’s discovery rulings, plaintiff gives no reason to revisit
them, nor are they a reason for recruiting counsel at this time. Indeed, even though
plaintiff has defendants’ summary judgment motion and supporting materials, plaintiff
does not specify what information he still needs to obtain to oppose defendants’
arguments, or establish why only a lawyer can accomplish the task.

Rather, plaintiff

generally objects to the denial of his motion to depose defendants. Plaintiff acknowledges
the magistrate’s point that neither he nor the court have the funds to pay for the costs, as
required under Federal Rule of Civil Procedure 30(b)(3). However, plaintiff argues that

3

written discovery is generally insufficient “in a case alleging First Amendment retaliation”
because defense counsel typically prepares answers to discovery requests.1 (Dkt. #73 at
1.) To the extent plaintiff suggests written answers are incomplete or misleading, the
information comes from defendants, and misconduct in litigation risks sanctions, including
dismissal. See Patrick v. City of Chi., 974 F.3d 824, 831 (7th Cir. 2020) (“A district judge
has broad discretion to sanction a party or his counsel for litigation conduct”). Litigants
can file a motion to compel if the opposing party is not responding appropriately to
discovery requests, which plaintiff has done in this case with partial success. Plaintiff has
therefore not established that he needs a lawyer to depose defendants because there is no
other way to get whatever unspecified information he thinks he still needs to oppose
defendants’ motion.
Plaintiff also takes issue with certain workgroup notes defendants produced in
response to a production request. By way of background, plaintiff sought all documents
related to the Sand Ridge medical special needs workgroup’s consideration of plaintiff’s
health services requests (“HSR”) for certain accommodations. After plaintiff objected to
the sufficiency of defendants’ initial responses, defendants supplemented, producing all
responses related to plaintiff’s relevant HSRs and 22 pages of workgroup meeting notes
indicating when the group considered each of plaintiff’s requests and why each request was
approved or denied. (Dkt. #56-2.) The magistrate judge reasonably found no basis to

Although plaintiff references retaliation, plaintiff is not proceeding in this case on a First
Amendment retaliation claim -- he was allowed to proceed on Fourteenth Amendment deliberate
indifference claims (dkt. #21 at 19), and never filed an amended complaint seeking to add new
claims. Plaintiff can look to the court’s screening order for guidance on his claims and the applicable
legal standard.
1

4

compel defendants to produce anything more given that plaintiff had not filed a reply or
otherwise indicated that these supplemental materials were insufficiently responsive, and
there was no reason to doubt defendants’ assertion that they had produced all they had
concerning plaintiff’s production request. (Dkt. #63 at 4.)
Now, plaintiff complains that the workgroup notes are heavily redacted, suggests
that defendants may have redacted information about his HSRs, and asks the court to
produce the copy defendant provided it in response to his motion to compel so that he can
compare that copy to the copy he received from defendants. To the extent plaintiff still
wishes to compare versions, defendants certified that they mailed plaintiff a copy of their
response to his motion and supporting documents, including the workgroup notes, via
First-Class Mail on May 26, 2021. (Dkt. #56-3.) This submission reviewed by the court
also remains publicly available on the docket for this case. (Dkt. #56-2.)
As for the redactions, the magistrate judge noted that fact and there does not appear
to be cause for concern. The notes are presented in a table format and those notes that
are visible appear in the same rows as plaintiff’s name and concern his requests.
Presumably what is redacted is information concerning the requests of other patients
discussed at the same meeting as a request from plaintiff, and thus information irrelevant
to this case. If defendants have inadvertently redacted information related to plaintiff’s
requests, the court expects that they would provide plaintiff with a revised copy of these
notes. While plaintiff may have hoped for greater detail in these notes, defendants cannot
produce what does not exist. Plaintiff thus offers no reason to revisit the magistrate judge’s
decision on this point or recruit a lawyer to do more. Accordingly, plaintiff’s request to

5

deny defendants summary judgment and recruit counsel will be denied.2
Although the court will deny plaintiff’s requested relief, in recognition of plaintiff’s
pro se status, the court will adjourn the remaining deadlines in this case and extend his
response deadline to April 19, 2022, with defendants’ reply due April 29, 2022. The court
will also briefly extend the discovery cutoff and set this matter for a status and scheduling
conference as indicated below. Plaintiff should do his best in that additional time to craft
a response to defendants’ motion, keeping in mind that the primary questions are whether:
(1) he suffered from an objectively serious medical condition; and (2) the state actor’s
response to it was objectively unreasonable. Miranda v. Cnty. of Lake, 900 F.3d 335, 35253 (7th Cir. 2018). To that end, plaintiff can rely on his personal knowledge as well as his
documentation of his medical condition and treatment, and defendants’ reasons for
denying certain requested accommodations.

If, upon reviewing the parties’ summary

judgment materials, the court becomes convinced that plaintiff is unable to continue
litigating this case, it will sua sponte revisit his request for counsel. However, if plaintiff
again fails to respond to defendants’ motion by the new response deadline, which the court
does not anticipate extending again, his claims will be subject to dismissal for failure to
prosecute. See Fed. R. Civ. P. 41(b).

In his latest filings, plaintiff suggests that he has additional motions pending in this matter.
However, the Court of Appeals denied plaintiff’s petition for leave to appeal on July 19, 2021 (dkt.
#62) and the magistrate judge resolved plaintiff’s remaining discovery motions in the October 14,
2021, order (dkt. #63). Other than plaintiff’s two submissions that the court resolves in this order,
and defendants’ pending motion for summary judgment, there are no other pending motions in this
case.
2

6

ORDER
IT IS ORDERED that:
1) Plaintiff Larry J. Brown’s motion to deny defendant’s motion for summary
judgment and his renewed requests for counsel (dkt. ##73, 74) are DENIED.
2) Plaintiff’s deadline to respond to defendants’ motion for summary judgment is
reset to April 19, 2022, with defendants’ reply due April 29, 2022. The
discovery cutoff is extended to May 2, 2022. All remaining case deadlines are
STRICKEN.
3) The court will hold a telephonic status and scheduling conference on June 17,
2022, at 10:30 a.m. Defendants are responsible for coordinating the call to
Chambers at 608-264-5087.
Entered this 18th day of February, 2022.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

7