Holton v. State of Montana et al

Filing 11

ORDER signed by Judge J P Stadtmueller on 2/26/09: denying 9 plaintiff's motion to reconsider allowing plaintiff to proceed in forma pauperis; plaintiff's amended complaint is due 3/13/09; and, denying 4 plaintiff's motion for appointment of counsel. (cc: plaintiff, AAG Corey F. Finkelmeyer, PLRA Attorney for U.S. Court of Appeals for the 7th Circuit, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
E R IC PRINCE HOLTON a/k/a Bruce W a lk e r, P l a i n t if f, v. S T A T E OF MONTANA, STATE OF NEVADA, STATE OF W IS C O N S IN , MONTANA BOARD OF PRISON COMMISSIONERS, NEVADA BOARD OF PRISON COMMISSIONERS, W IS C O N S IN BOARD OF PRISON COMMISSIONERS, MONTANA DEPARTMENT OF CORRECTIONS, NEVADA DEPARTMENT OF PRISONS, W IS C O N S IN DEPARTMENT OF CORRECTIONS, KATHLEEN EVANS, ROBERT JONES, MIKE MAHONEY, RICK DAY, STEVEN MCARTHUR, CORRECTIONAL MEDICAL SERVICES, THEADORE DEAMICO, JACKIE CRAW F O R D , ELVON K MCDANIEL, TRANSCORE AMERICA, MATTHEW J FRANKS, RICK RAEMISCH, CATHY JESS, T H W IL L IA M S , CAPTAIN SCHOLKE, SHEBOYGAN COUNTY, CATHERINE FARLEY, DR HEINZ, BURTON COX, RICHARD SCHNEITER, R HEIDORN, W IL L IA M POLLARD, DAVID BURNETT, DR DALEY, and JOHN DOES 1-10, D e fe n d a n ts . C a s e No. 08-C-0616

ORDER
T h e plaintiff, Eric Prince Holton, who is incarcerated at Green Bay Correctional In s titu tio n (GBCI), lodged a pro se civil rights complaint under 42 U.S.C. § 1983, a lle g in g that his civil rights were violated. In an order dated December 22, 2008, this c o u rt found that the plaintiff has accumulated three "strikes" under 28 U.S.C. § 1915(g) and, therefore, denied the plaintiff's motion for leave to proceed in forma

p a u p e ris . The court also noted that the plaintiff does not allege in his complaint that h e is under imminent danger of serious physical injury. The court ordered the p la in tiff to pay the remainder of the filing fee within 30 days and also warned him that h is failure to comply with the order would result in dismissal of this action. PLAINTIFF'S MOTION FOR RECONSIDERATION T h e plaintiff has now filed a motion asking the court to reconsider allowing p la in tiff to proceed in forma pauperis.1 The plaintiff supports his motion to reconsider w ith a lengthy affidavit and supporting exhibits, in which he asserts that he "has been d e n ie d adequate medical care by the defendants and as a result he is in imminent d a n g e r of serious physical injury and death ...." A motion for reconsideration serves a very limited purpose in federal civil litig a tio n ; it should be used only "to correct manifest errors of law or fact or to present n e w ly discovered evidence." Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 2 5 1 (7th Cir. 1987) (quoting Keene Corp. v. Int'l Fid. Ins. Co., 561 F. Supp. 656, 6656 6 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)). While it is true that any n o n fin a l decision or order is subject to revision at any time before the entry of ju d g m e n t, Fed. R. Civ. P. 54(b), such revisions are discouraged. "A court has the p o w e r to revisit prior decisions of its own . . . in any circumstances such as where th e initial decision was `clearly erroneous and would work a manifest injustice.'"

In addition to his m o tio n to reconsider, the plaintiff includes a request for a prelim in a r y injunction o r d e r in g the W is c o n s in Departm e n t of Corrections (DOC) to obtain all of the plaintiff's m e d ic a l records, and a n injunction ordering the W is c o n s in DOC to have plaintiff seen by an outside specialist. The plaintiff also a s k s the court to appoint both counsel and an expert witness.

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C h ris tia n s o n v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting A rizo n a v. California, 460 U.S. 605, 618 n.8 (1983)). In general, "litigants must fight a n uphill battle in order to prevail on a motion for reconsideration." United Air Lines, In c . v. ALG, Inc., 916 F. Supp. 793, 795 (N.D. Ill. 1996). T h e plaintiff's original complaint, filed July 16, 2008, contained no assertion o f imminent danger. As such, the order directing the plaintiff to pay the remainder o f the filing fee to proceed with this case was not clearly erroneous. To the extent th e court construes the plaintiff's motion as one for reconsideration, the court will d e n y the motion. The court suspects that the plaintiff received the December 22, 2008 order o u tlin in g his three "strikes" and submitted his declaration in support of motion to re c o n s id e r in an attempt to supplement his complaint with the only allegations that w o u ld allow this case to proceed without prepayment of the filing fee. However, the p la in tiff has not brought a motion to amend his complaint under Federal Rule of Civil P r o c e d u re 15(a) or a motion to supplement his complaint under Rule 15(d). Judicial d e c is io n s to grant or deny motions under both rules require the court to weigh the fa irn e s s of allowing the plaintiff to amend or supplement the complaint. In the absence of any apparent or declared reason - such a s undue delay, bad faith or dilatory motive on the part of a movant, repeated failure to cure deficiencies by a m e n d m e n ts previously allowed, undue prejudice to the o p p o s in g party by virtue of allowance of the amendment, fu tility of the amendment, etc. - the leave sought should, a s the rules require, be freely given. F o m a n v. Davis, 371 U.S. 178, 182 (1962). 3

In the interest of fairness, the court will give the plaintiff one opportunity to file a n amended complaint that sets forth all of his allegations, including any allegation th a t he is under imminent danger.2 The court will then evaluate the amended c o m p la in t to determine whether the plaintiff has alleged some type of imminent p h ys ica l injury. See 28 U.S.C. § 1915(g). The court reminds the plaintiff that an a m e n d e d complaint supersedes the prior complaint. See Duda v. Board of Ed. Of F r a n k lin Park Public School District No. 84, 133 F.3d 1054, 1056 (7th Cir. 1998). T h e re fo re , the plaintiff's amended complaint must incorporate the allegations set fo rth in his initial complaint. Any matters not set forth in the amended complaint are, in effect, withdrawn. See id. The plaintiff shall file his amended complaint on or before Friday, March 13, 2 0 0 9 . If the plaintiff does not file an amended complaint on or before that date, the c o u rt will dismiss this case. P L AIN T IF F 'S MOTION TO APPOINT COUNSEL T h e plaintiff also has a previously pending motion to appoint counsel. A lth o u g h civil litigants do not have a constitutional or statutory right to appointed c o u n s e l, I have the discretion to request attorneys to represent indigents in a p p ro p ria te cases pursuant to 28 U.S.C. § 1915(e)(1). Pruitt v. Mote, 503 F.3d 647,

In order to m e e t the im m in e n t danger requirem e n t of 28 U.S.C. § 1915(g), a plaintiff m u s t allege a p h ys ic a l injury that is im m in e n t or occurring at the tim e the com p la in t is filed, and the threat or prison condition c a u s in g the physical injury m u s t be real and proxim a t e . Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) ( c itin g Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002) and Heimermann v. Litscher, 337 F.3d 781 (7th C ir . 2003)("The `im m in e n t danger' exception to § 1915(g)'s `three strikes' rule is available `for genuine e m e r g e n c ie s , ' where `tim e is pressing' and `threat . . . real and proxim a t e . '" )).

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6 5 3 (7th Cir.2007); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997) (citing Zarnes v . Rhodes, 64 F.3d 285, 288 (7th Cir.1995)). As a threshold matter, litigants must m a k e a reasonable attempt to secure private counsel on their own. Pruitt, 503 F.3d a t 654; Zarnes, 64 F.3d at 288. Once this threshold burden has been met, the court m u s t address the following question: given the difficulty of the case, does this p la in tiff appear competent to try the case himself and, if not, would the presence of c o u n s e l likely make a difference in the outcome of the case. Pruitt, 503 F.3d at 6546 5 5 (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). T h e plaintiff makes the blanket statement in his motion that he has u n s u c c e s s fu lly attempted to obtain legal counsel on his own, and his declaration in s u p p o rt of the motion indicates that he has attempted to secure counsel in Montana, N e va d a and W is c o n s in . As such, the plaintiff has met the threshold burden.

N e ve rth e le s s , the issues in this case appear at this stage to be straightforward and u n c o m p lic a te d , and the plaintiff's filings indicate that he is capable of litigating this c a s e himself. Therefore, at this time, the court does not believe that the presence o f counsel is likely to make a difference in the outcome of this case. The court will d e n y the plaintiff's motion for appointment of counsel. A c c o r d in g ly , I T IS ORDERED that the plaintiff's motion to reconsider allowing plaintiff to p ro c e e d in forma pauperis (Docket #9) is hereby DENIED.

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IT IS FURTHER ORDERED the plaintiff shall file his amended complaint on o r before Friday, March 13, 2009. IT IS FURTHER ORDERED that the plaintiff's motion for appointment of c o u n s e l (Docket #4) is hereby DENIED. IT IS FURTHER ORDERED that copies of this order be sent to the warden of th e institution where the plaintiff is confined, and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in 53707-7857, and to PLRA Attorney, United States Court of Appeals for th e Seventh Circuit, 219 S. Dearborn Street, Rm. 2722, Chicago, Illinois 60604. D a te d at Milwaukee, W is c o n s in , this 26th day of February, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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