Lee v. Kenosha County Sheriff's Department et al
ORDER DENYING 37 Motion to Appoint Counsel filed by John D Lee, signed by Judge William C Griesbach on 09/16/2022. Plaintiffs deadline to respond to Defendants motion to dismiss is extended to October 4, 2022. (cc: all counsel and mailed to Lee, pro se)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN D. LEE,
Case No. 21-C-1282
BRIAN HORENSKY, et al.,
ORDER DENYING MOTION TO RECRUIT COUNSEL
Plaintiff John D. Lee, who is representing himself, filed a complaint under 42 U.S.C.
§1983, alleging that Defendants Brian Horensky and Nicole Sorensen used excessive force, failed
to intervene, and wrongfully arrested him on July 24, 2018. Dkt. No. 13 at 8. On August 30, 2022,
Defendants filed a motion to dismiss based on Wisconsin’s Statute of Limitations. Dkt. No. 34.
Plaintiff has not yet responded to the motion. Instead, he filed a second motion to appoint counsel
on September 14, 2022, alleging that he has reached out to lawyers to no avail; he is having
difficulty with discovery because he lacks legal knowledge and/or because the Kenosha County
Jail and the Froedtert Hospital are colluding against him; and he does not have many legal
resources at the Winnebago Correctional Center. Dkt. No. 37.
In a civil case, the Court has discretion to recruit a lawyer for individuals who cannot afford
to hire one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. §1915(e)(1); Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). In exercising its discretion,
the Court must consider two things: “(1) has the indigent plaintiff made a reasonable attempt to
obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of
the case, does the plaintiff appear competent to litigate it himself?” Eagan v. Dempsey, 987 F.3d
667, 682 (7th Cir. 2021) (citing Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007)). “[D]eciding
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whether to recruit counsel ‘is a difficult decision: Almost everyone would benefit from having a
lawyer, but there are too many indigent litigants and too few lawyers willing and able to volunteer
for these cases.’” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (quoting Olson v.
Morgan, 750 F.3d 708, 711 (7th Cir. 2014)).
To satisfy the first prong, the Court must determine that a plaintiff made a good faith effort
to hire counsel on his own. Pickett v. Chicago Transit Auth., 930 F.3d 869, 871 (7th Cir. 2019).
“This is a mandatory, threshold inquiry that must be determined before moving to the second
inquiry.” Eagan, 987 F.3d at 682. “The second inquiry requires consideration of both the factual
and legal complexity of the plaintiff’s claims and the competence of the plaintiff to litigate those
claims.” Id. When considering the second prong, the Court “must examine the difficulty of
litigating specific claims and the plaintiff’s individual competence to litigate those claims without
counsel.” Pennewell v. Parish, 923 F.3d 486, 490 (7th Cir. 2019). The Court looks at “whether
the difficulty of the case, factually, legally, and practically, exceeds the litigant’s capacity as a
layperson to coherently litigate the case.” Id. This includes “all tasks that normally attend
litigation,” such as “evidence gathering, preparing and responding to court filings and motions,
navigating discovery, and putting on a trial.” Id. at 490-491. The Court “must consider the
plaintiff’s literacy, communication skills, education level, litigation experience, intellectual
capacity, psychological history, physical limitations and any other characteristics that may limit
the plaintiff’s ability to litigate the case.” Id. at 491. The Court may also consider the merits and
what is at stake when deciding whether to allocate scarce pro bono counsel resources. Watts v.
Kidman, 42 F.4th 755, 764 (7th Cir. 2022).
The Court is satisfied that Plaintiff made reasonable attempts to recruit counsel on his own.
See Dkt. No. 37-3. But Plaintiff has not satisfied the second prong. Plaintiff’s lack of legal
knowledge and lack of legal resources is not enough to show that he lacks the capacity to represent
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himself. Indeed, he has been able to follow the Court’s instructions to identify Doe defendants,
and his other filings thus far have been clear and coherent. Based on this, the Court concludes that
Plaintiff is capable of representing himself at this point in time.
Further, as explained in the prior order, see Dkt. No. 24 at 4, Plaintiff should focus on one
task at a time. Right now, all he must do is respond to Defendants’ motion to dismiss—he need
not worry about discovery. In the motion to dismiss, Defendants claim that Plaintiff did not timely
file this lawsuit within three years of the incident giving rise to the claim. Plaintiff should file a
response to the motion explaining why he waited until November 2021 to file this case, including
any attempts he made to exhaust his administrative remedies. Since this is information of which
Plaintiff has direct knowledge, recruitment of counsel should not be necessary in order for him to
respond. A lawyer can’t change the critical facts surrounding when he filed, and the Court is
familiar with the law surrounding Wisconsin’s statute of limitations, so it can independently assess
whether Plaintiff’s reason for waiting to file defeats the statute of limitations as a matter of law.
The Court will therefore deny Plaintiff’s second motion to appoint counsel without prejudice. The
Court will, however, extend the deadline by which Plaintiff must respond by two weeks to allow
him additional time to do so.
IT IS THEREFORE ORDERED that Plaintiff’s second motion to appoint counsel (Dkt.
No. 37) is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s deadline to respond to Defendants’ motion
to dismiss is extended to October 4, 2022.
Dated at Green Bay, Wisconsin this 16th day of September, 2022.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
Case 1:21-cv-01282-WCG Filed 09/16/22 Page 3 of 3 Document 38
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