Davis v. Alba et al
Filing
10
ORDER signed by Magistrate Judge Nancy Joseph on 3/6/2013 GRANTING 2 Motion for Leave to Proceed in forma pauperis; DENYING Motions 7 and 8 to Appoint Counsel or a guardian ad litem, and for a determination of competency. Defts shall file a responsive pleading to the complaint within 60 days of receiving electronic notice of this order. FURTHER ORDERED that the $445.31 balance of the filing fee shall be collected in accordance with 28 USC Section 1915(b)(2) (cc: all counsel, mailed to Warden and plaintiff via USPS) (djd)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY M. DAVIS, II,
Plaintiff,
v.
Case No. 12-CV-1111
JOSE ALBA,TIMOTHY REICHENBERGER,
AMANDA MUNSON, DAVE ALLEN,
STEVE STRUBING, MARY KLEMZ,
NURSE LAURA, ANNE PARRIS,
SADIE KRAMER, DONNA MILLER,
CO JOHN DOE, and TED STERN,
Defendants.
ORDER
The plaintiff, who is incarcerated at Columbia Correctional Institution, filed a pro se complaint
under 42 U.S.C. § 1983, alleging that his civil rights were violated. The plaintiff has consented to
United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule
73 (E.D. Wis.). Before the court are the plaintiff’s petition to proceed in forma pauperis and motion
for appointment of counsel.
Petition To Proceed In Forma Pauperis
The plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he or she can request leave
to proceed in forma pauperis. The plaintiff has filed a certified copy of his prison trust account
statement for the six-month period immediately preceding the filing of his complaint, as required
under 28 U.S.C. § 1915(a)(2), and has been assessed and has paid an initial partial filing fee of $4.69.
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
To state a cognizable claim under the federal notice pleading system, the plaintiff is required
to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed. R.
Civ. P. 8(a)(2). The complaint must contain sufficient factual matter, accepted as true, “that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007) ). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation
omitted). Legal conclusions must be supported by factual allegations. Iqbal, 556 U.S. at 679. If there
are well-pleaded factual allegations, the court must “assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was
deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation
was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). The court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
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According to the complaint, the plaintiff injured himself by swallowing 46 Tylenol pills during
a suicide attempt in September 2012 while he was confined at the Wisconsin Resource Center
(WRC). The plaintiff alleges that the defendants were aware of his prior history of attempting suicide
by overdose, yet continued to give him pills rather than liquid or crushed medication, abruptly
cancelled his Lithium prescription, did not monitor medication pass adequately to ensure that he
swallowed rather than hoarded his medication, allowed him to keep his medication stockpile because
they did not properly search his cell or body, and failed to provide proper mental health treatment
and supervision despite his repeated suicidal statements.
The Eighth Amendment bans “cruel and unusual punishments” and prison officials are
therefore required “to take reasonable measures to guarantee the safety of inmates.” Minix v.
Canarecci, 597 F.5d 824, 830 (7th Cir. 2010). This type of § 1983 claim has two elements: “(1) the
prisoner suffered an objectively serious harm that presented a substantial risk to his safety, and (2)
the defendants were deliberately indifferent to that risk.” Id. at 831. In cases involving a prisoner’s
“suicide or attempted suicide, the second, subjective component of an Eighth Amendment claim
requires a dual showing that the defendant: (1) subjectively knew the prisoner was at substantial risk
of committing suicide and (2) intentionally disregarded the risk.” Collins v. Seeman, 462 F.3d 757, 761
(7th Cir. 2006). At this stage in the proceedings, the plaintiff may proceed on an Eighth Amendment
claim for deliberate indifference to the risk that he would attempt to harm himself.
Before filing his complaint, the plaintiff was transferred from WRC to Columbia Correctional
Institution. Because the plaintiff is no longer in the custody of WRC , while he may proceed on his
claims for damages, his “prayers for prospective relief are moot” and he may not obtain injunctive
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relief regarding WRC policies, practices, or personnel unless he establishes that there is a realistic
possibility that he will be returned to that facility.1
Motion To “Appoint” Counsel
The plaintiff requests that the court “appoint” counsel to represent him in this matter. Civil
litigants have neither a statutory nor a constitutional right to be represented by counsel in federal
court. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). However, an indigent civil
litigant may ask the district court to request an attorney to represent him pro bono. See 28 U.S.C. §
1915(e)(1) (in proceedings in forma pauperis, “[t]he court may request an attorney to represent any
person unable to afford counsel”). To be clear, the court’s discretionary authority is to recruit a
lawyer to represent an indigent civil litigant pro bono, but not to make “coercive appointments of
counsel.” Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). When a party asks the court to recruit a
volunteer lawyer in a civil case, the district court must inquire as to whether (1) the indigent party
has made a reasonable attempt to obtain counsel or has been effectively precluded from doing so; and
(2) the indigent party appears competent to litigate the case himself, taking into account the difficulty
1
Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009) (“Because of this change in
circumstances, Mr. Ortiz’s prayers for prospective relief are moot. If we were to reverse
the judgment of the district court and remand this matter for further proceedings, the
district court could grant no prospective relief to Mr. Ortiz against these defendants.
There is no realistic possibility that Mr. Ortiz will again be incarcerated in the same state
facility and therefore be subject to the actions of which he complains here. Any relief that
our judgment might permit would be purely speculative in nature. See Preiser v. Newkirk,
422 U.S. 395, 401-04 (1975) (holding that a prayer for prospective relief on a claim of
unconstitutional transfer was moot because the prisoner had been returned to the initial
facility with no foreseeable effect on future parole decisions); Sutton v. Rasheed, 323 F.3d
236, 248 (3d Cir.2003) (“An inmate’s transfer from the facility complained of generally
moots the equitable and declaratory claims.”); Young v. Lane, 922 F.2d 370, 373 (7th
Cir.1991) (concluding that past exposure to illegal conduct at a prior facility, without
threat of repetition, did not present a pending case or controversy that might warrant
injunctive relief). Moreover, as in Preiser, we shall not assume without reason that Mr.
Ortiz might once again find himself an inmate of the same local institution and find
himself subject to the restrictions of which he complains here. See Preiser, 422 U.S. at 40203, 95 S.Ct. 2330. Because Mr. Ortiz’s complaint also contains claims for damages for
the alleged past infringements of his constitutional rights, however, his entire case is not
moot. His damages claims remain alive.”).
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of the case. Id at 654. On the second part of this inquiry, the question is not whether a lawyer would
present the case more effectively than the pro se plaintiff. “[I]f that were the test, ‘district judges would
be required to request counsel for every indigent litigant.’” Id. at 655 (internal citations omitted).
Rather, the 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. Id.
In this case, the plaintiff has identified attorneys whom he has contacted without success, so
the Court will consider, given the difficulty of the case, whether the plaintiff appears competent to
litigate the case himself. See id. It appears that the plaintiff has mental health issues that could limit
his ability to litigate in the future. Thus far, however, his filings have been clear and appropriately
supported. Apparently, the plaintiff’s filings have benefitted from the assistance of another inmate,
but this alone does not indicate that the plaintiff is incapable of litigating on his own behalf,
especially as his anticipated loss of legal assistance from other inmates remains speculative.
Because the record thus far indicates that the plaintiff is litigating this matter competently, the
Court declines to recruit counsel for the plaintiff at this point in the proceedings. Nor will the Court
declare the plaintiff to be incompetent or appoint a guardian ad litem. However, the Court may revisit
the decision not to recruit counsel as the case proceeds if it appears that counsel is required. See
Santiago v. Wells, 599 F.3d 749, 762-65 (7th Cir. 2010) (holding that district court should have
recruited counsel for plaintiff who was transferred to another correctional facility and encountered
difficulties in conducting necessary pretrial discovery with uncooperative prison officials and
defendants).
NOW, THEREFORE, IT IS ORDERED that the plaintiff’s motion for leave to proceed in
forma pauperis (Docket # 2) be and hereby is GRANTED.
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IT IS FURTHER ORDERED that the plaintiff’s motions to appoint counsel and/or a
guardian ad litem and for determination of competency (Docket # 7 and # 8) be and hereby are
DENIED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement between the
Wisconsin Department of Justice and this court, copies of plaintiff’s complaint and this order are
being electronically sent today to the Wisconsin Department of Justice for service on the state
defendants.
IT IS ALSO ORDERED that, pursuant to the informal service agreement between the
Wisconsin Department of Justice and this court, the defendants shall file a responsive pleading to the
complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of Corrections
or his designee shall collect from the plaintiff’s prison trust account the $445.31 balance of the filing
fee by collecting monthly payments from the plaintiff’s prison trust account in an amount equal to
20% of the preceding month’s income credited to the prisoner’s trust account and forwarding
payments to the clerk of the court each time the amount in the account exceeds $10 in accordance
with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the case name and number
assigned to this action.
IT IS ALSO ORDERED that a copy of this order be sent to the warden of the institution
where the inmate is confined.
IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and legal
material to:
Honorable Nancy Joseph
% Office of the Clerk
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United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
The plaintiff is notified that from now on, he is required under Federal Rule of Civil
Procedure 5(a) to send a copy of every paper or document filed with the court to the opposing party
or, if the opposing party is represented by counsel, to counsel for that party. Fed. R. Civ. P. 5(b). The
plaintiff should also retain a personal copy of each document. If the plaintiff does not have access to
a photocopy machine, he may send out identical handwritten or typed copies of any documents. The
court may disregard any papers or documents which do not indicate that a copy has been sent to the
opposing party or that party’s attorney, if the party is represented by an attorney.
The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of Court
of any change of address. Failure to do so could result in orders or other information not being timely
delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin this 6th day of March, 2013.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge
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