Weichman v. Milw. County Sheriff David A. Clarke Jr

• Decision Date: 15 February 2011
• Docket Number: Case No. 09-CV-740
• Parties: JOHN C. WEICHMAN, JR., Plaintiff, v. MILW. COUNTY SHERIFF DAVID A. CLARKE JR., MILWAUKEE COUNTY and JOHN DOES, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

JOHN C. WEICHMAN, JR., Plaintiff,

v. MILW. COUNTY SHERIFF DAVID A. CLARKE JR., MILWAUKEE COUNTY and JOHN DOES, Defendants.

Case No. 09-CV-740

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: February 15, 2011.

ORDER

On July 29, 2009, the pro se plaintiff, John C. Weichman, Jr. ("Weichman"), filed a complaint alleging several different theories for relief related to his arrest and subsequent detainment in Milwaukee County Jail starting on March 4, 2009. (Docket #1). The case was randomly assigned to Chief Judge Clevert, who asked the parties to submit a report pursuant to Fed. R. Civ. P. 26 that would constitute the schedule for this litigation. (Docket #21). The report agreed to by the parties provided, in relevant part, a deadline of August 15, 2010, by which parties could submit dispositive motions. (Docket #25). On January 19, 2010, this matter was randomly reassigned to this branch of the court, with the schedule imposed by Chief Judge Clevert continuing to govern this matter. (Docket #36). Two days before the dispositive motion deadline, the defendants, David A. Clarke Jr. ("Clarke"), Milwaukee County ("Milwaukee County"), and unnamed "John Does, " filed a motion for summary judgment. (Docket #13). The August 15, 2010 date for filing dispositive motions came and passed without a similar motion by the plaintiff. However, on September 10, 2010, Mr. Weichman opted to file a motion labeled "notice of motion and motion for summary judgment." (Docket #55). The motion itself is difficult to understand, as it complains of the contents of the affidavits the defendant submitted with its August 13, 2010 motion for a page and a half (Docket #55 at 2-3), discusses the standards for bringing a motion to compel for another page, id. at 3-4, and closes with the peculiar declaration that "[f]or the foregoing reasons... plaintiff hereby moves this court for an Order granting Summary Judgment in favor of the plaintiff and the dismissal of all claims advanced by the defendants."¹ Id. at 5. Given that Mr. Weichman's motion for summary judgment in his favor was filed more than three weeks late, the defendants filed a motion to strike his summary judgment motion. (Docket #61). Not to be outdone, the plaintiff responded by filing a motion to strike the defendants' motion to strike on October 8, 2010. (Docket #62). Thankfully, to date, no party has filed "a motion to strike the motion to strike the motion to strike." Nonetheless, the docket in this matter is a bit of a mess, and the court begins this order by doing some much needed housekeeping of the docket before proceeding to resolve more substantive issues.

Fed. R. Civ. P. 6(b)(1) is clear: when an act may or must be done within a specified time-such as the dispositive motion deadline agreed to by the parties and approved by Chief Judge Clevert-the court can extend the time only if the movant demonstrates good cause. Fed. R. Civ. P. 6(b)(1)(B) adds another caveat for whena motion is made after the time to make such a motion has expired: the court can retroactively extend the deadline for when an act must be done by if the movant demonstrates excusable neglect. A court determines whether a party has failed to act because of "excusable neglect" by considering the relevant circumstances surrounding the party's omission. Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 362 (7th Cir. 1997). The Supreme Court, in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993), provided a list of factors for a court to consider in evaluating whether "excusable neglect" exists, including "the danger of prejudice to the [defendant], the length of the delay and its potential impact on judicial proceedings, the reasons for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id. Here, the plaintiff has failed to provide any reason for why the motion for summary judgment was filed so late. This is especially remarkable given Mr. Weichman's earlier submissions to the court requesting an even earlier dispositive motion deadline of June 30, 2010. (Docket #18 at 6).

The plaintiff argues in his response to the defendants' motion to strike that the federal rules "allow 21 days for a response to be filed." (Pl.'s 10/08/10 Resp. Br. at 2). The court can only conclude that the plaintiff is utterly confused. The former manifestation of Fed. R. Civ. P. 56(c), which was effective until December 1, 2010, allowed a party opposing a motion for summary judgment to file a response within 21 days after the motion was served. Mr. Weichman was not filing a "response" with his docket entry at Docket #55; instead, he was filing a dispositive motion of his own to have the court grant summary judgment in his favor. The former Fed. R. Civ. P. 56(c) is irrelevant to his inquiry.² The rest of the plaintiff's response to the motion to strike is a series of ad hominem attacks on the defendants' counsel which this court will not dignify with a response. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of Am. Inc., 700 F. Supp. 2d 1055, 1101 (E.D. Wis. 2010) ("inadequately developed arguments are deemed waived."). In short, the court will deny and strike Mr. Weichman's September 10, 2010 motion, strike his accompanying affidavit at Docket #56 and proposed findings of fact in favor of his motion for summary judgment at Docket #57, grant the defendants' motion to strike, and deny the plaintiff's motion to strike the defendants' motion to strike. The court proceeds to resolve the defendants' motion for summary judgment, beginning with a discussion of the undisputed facts in this case.

UNDISPUTED FACTS

Before detailing the undisputed facts, the court notes the means by which the court arrived at the facts of the case. The plaintiff is proceeding pro se in this litigation, and, as is required when moving for summary judgment against a pro selitigant, the defendant provided Weichman with the text of Fed. R. Civ. P. 56(e) & (f) and Civil L.R. 56.1, 56.2 and 7.1.³ Additionally, defendants' motion for summary judgment informed the plaintiff that:

Pursuant to Civil Local Rule 56.1, please be advised that any factual assertion set forth in the accompanying affidavits and proposed findings of fact will be accepted by the Court as true unless you submit your own affidavits or other admissible documentary evidence contradicting the factual assertions.

(Def. Mot. S.J. at 2). The defendants filed proposed findings of fact, supported by admissible evidence, in support of its motion for summary judgment. However, Mr. Weichman did not dispute the defendants' proposed findings of fact. Instead, the plaintiff filed a series of proposed findings to support his own motion for summary judgment and an accompany affidavit, both of which the court has already struck from the docket. However, even if the court very liberally construed Mr. Weichman's proposed findings of fact and his affidavit at Docket #56 as a means to contest the defendants'0 own findings, the plaintiff's submissions are in violation of both the federal and local rules. Mr. Weichman's proposed findings do not cite to any "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations, admissions, interrogatory answers, " as required by Fed. R. Civ. P. 56(c)(1)(A) and Civil L.R. 56(b)(2)(B) and (C). Moreover, it is well-established that in ruling on a motion for summary judgment, the court can only consider evidence that would be admissible at trial. See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). To be admissible, testimony must be sworn, for example, in an affidavit or in a deposition. If it is not, the Court must disregard it. See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985). "Affidavits are admissible in summary judgment proceedings if they are made under penalties of perjury; only unsworn documents purporting to be affidavits may be rejected." Pfeil, 757 F.2d at 859. Here, Mr. Weichman seems to have presented only one piece of admissible evidence, an affidavit endorsed by a notary public, in compliance with 28 U.S.C. § 1746.⁴ See Pfeil, 757 F.2d at 859. However, the affidavit does not come close to contradicting the evidence presented by the defendants. In fact, Mr. Weichman's affidavit merely complains in two paragraphs about the defendants' alleged "refusal to comply with the Discovery Process" (Weichman Aff. ¶¶ 2, 13), with the remainder of the affidavit devoted to Mr. Weichman's discussion of "Wisconsin Statute 345, " id. ¶¶ 3-12, a discussion, that for reasons provided later in this order, is wholly tangential and irrelevant to the matter at hand. In short, Mr. Weichman's affidavit and proposed findings do not come close to contesting the proposed findings of the defendants. As a result, thecourt must accept as true any of the uncontradicted evidence provided by the defendants.

The court acknowledges that the plaintiff is proceeding pro se, but that fact alone does not excuse Mr. Weichman from submitting admissible evidence to oppose the motion for summary judgment. Indeed, "pro se litigants are not entitled to a general dispensation from the rules of procedure." Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). The court has little sympathy for the plaintiff, as he was given: (1) a copy of the relevant local and federal rules with regarding to summary judgment motions; and (2) an explicit warning regarding the consequence if he failed to comply with the rules. Moreover, there is no reason to conclude that Mr. Weichman's errors were a result of a simple misunderstanding of the law. As the court noted in its May 25, 2010 order, the plaintiff has "shown that he is accustomed to the Federal Rules of Civil Procedure and is capable of performing legal research." (Docket #44 at 3)....