Saddy v. Agnesian Health Care et al

Filing 147

ORDER signed by Judge J P Stadtmueller on 2/22/16: ADOPTING 141 Report and Recommendation of Magistrate Judge; GRANTING 135 Counsel's Motion to Withdraw as Attorney for Plaintiff; this district's pro se staff attorneys shall secure c ounsel to represent Plaintiff within 21 days of the entry of this order; GRANTING 137 Plaintiff's unopposed Motion to Stay proceedings; VACATING the dates provided in 133 the Court's previous trial scheduling order; and, within 21 days of the appearance of Plaintiff's new counsel, the parties shall file a joint report proposing a new schedule. (cc: Plaintiff, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID SADDY,
Plaintiff,
v.

Case No. 13-CV-519-JPS

AGNESIAN HEALTH CARE,
DR. THOMAS W. GROSSMAN,
DR. ENRIQUE LUY,
MARGARET M. ANDERSON, and
WAUPUN MEMORIAL HOSPITAL,

ORDER

Defendants.
On December 21, 2015, the plaintiff David Saddy’s recruited counsel
moved to withdraw as counsel for Mr. Saddy. (Docket #135). The Court
referred that motion to Magistrate Judge David Jones for a determination of
whether counsel’s motion should be granted and, further, whether the Court
should endeavor to recruit new counsel for Mr. Saddy. (Docket #136).
Magistrate Judge Jones has recommended that the Court grant counsel’s
motion to withdraw (Docket #141) and further that the Court recruit new
counsel for Mr. Saddy (Docket #146). Finding those recommendations to be
well-founded, the Court will adopt both of them. In effect, the Court will
allow Mr. Saddy’s current counsel to withdraw and will attempt to recruit
new counsel for Mr. Saddy.
However, the Court must note its reluctance to recruit new counsel.
This district has a very limited number of attorneys willing to take civil cases
on a pro bono basis. Several larger law firms—including the firm representing
Mr. Saddy—have volunteered to take a small number of pro bono cases. But,
other than those larger firms, it has been very difficult to find lawyers to take

these cases. Understandably, that is because pro bono cases require significant
amounts of time and resources, which many practitioners working alone or
in small firms simply do not have.
Meanwhile, this district, unlike others in the Seventh Circuit, does not
have a compulsory recruitment program, by which it can require members
of the trial bar to take pro bono cases. See Henderson v. Ghosh, 755 F.3d 559, 563
n.1 (7th Cir. 2014) (describing the Northern District of Illinois’ recruitment
program). The merits of such a program may be debated—it would certainly
make the work of the Court easier, but the opposite can probably be said for
attorneys who might be required to take cases despite not wanting to.
In any event, because such a program is not in place here, two things
result each time that the Court recruits counsel. First, this district’s alreadybusy pro se staff attorneys have to find an attorney to take the case, which
always requires a substantial amount of time and effort on their part.
Second, when an attorney from a large firm takes the case (as is most often
the case), it often means that the attorney’s firm will take one less case later
in the year. Accordingly, recruitment of an attorney for one litigant could
very well mean that another litigant must wait longer for their turn.
Now, to Mr. Saddy’s case at hand. The Court first recruited counsel
to assist him with his Pavey hearing. (Docket #75). That representation
arrangement seems to have gone well, but unfortunately recruited counsel
did not have the ability to assist Mr. Saddy for the duration of his case. (See
Docket #105). So, the Court ordered recruitment of a new set of attorneys for
Mr. Saddy. (Docket #110, #111). This district’s pro se staff attorneys recruited
Mr. Saddy’s current counsel, and Mr. Saddy agreed to their representation
of him on February 24, 2015. (Docket #111). Approximately ten months later,

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Mr. Saddy’s counsel moved to withdraw from their representation of him,
apparently due to Mr. Saddy’s frustration with their efforts. (See Docket #135,
#138, #141, #146). As already noted, the Court referred that motion to
Magistrate Judge Jones, so as to ensure that this Court would not be
negatively impacted by any discussions amongst the parties about the
reasons for counsel’s withdrawal. (Docket #136). Ultimately, Magistrate
Judge Jones found that recruitment of new counsel for Mr. Saddy is
appropriate, and the Court accepts his report and recommendation.
Nonetheless, as the Court has already said, it has reservations about
recruiting a third set of attorneys for Mr. Saddy, when most pro se litigants
do not even receive a single attorney. The Court recognizes that it is bound
by the standard described in Pruitt v. Mote, and so must recruit counsel for
Mr. Saddy, given the complexity of this case. See 503 F.3d 647, 654 (7th Cir.
2007) (en banc) (requiring recruitment when plaintiff has made reasonable
attempts to obtain counsel and the difficulty of the case exceeds the abilities
of the plaintiff). The Court also accepts that Mr. Saddy is acting in good faith.
But, as the Seventh Circuit has recognized, litigants have “no right to courtappointed counsel in federal civil litigation.” Olson v. Morgan, 750 F.3d 708,
711 (7th Cir. 2014). So, the Court struggles with the decision to recruit new
counsel for Mr. Saddy—potentially delaying it for another litigant—simply
because Mr. Saddy was not happy with the way that counsel communicated
with him.
For these reasons, the Court must give Mr. Saddy a warning: while it
is recruiting new counsel for him at this juncture, it will be extremely
unlikely to do so again in the future. Specifically, if Mr. Saddy is dissatisfied
with future counsel recruited to represent him, the Court will order an

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evidentiary hearing and will not recruit further counsel unless Mr. Saddy’s
dissatisfaction is truly well-grounded. In other words, Mr. Saddy needs to
make every effort to work well with the counsel that the Court is about to
recruit for him; it may be his last opportunity.
With all of this said, the Court will adopt Magistrate Judge Jones’
report and recommendation (Docket #141) and will, accordingly, grant Mr.
Saddy’s current counsel’s motion to withdraw (Docket #135) and will also
direct this district’s pro se staff attorneys to recruit new counsel for Mr. Saddy
within 21 days of the entry of this order. The Court sincerely thanks Mr.
Saddy’s current attorneys for their efforts on Mr. Saddy’s behalf.
Finally, because it will take some time to recruit new counsel and for
new counsel to get up to speed, the Court will grant Mr. Saddy’s unopposed
motion to stay the proceedings in this case. (Docket #137). The Court will
vacate the dates laid out in its previous trial scheduling order. (Docket #133).
After new counsel for Mr. Saddy has made an appearance in this case, the
parties shall submit a joint report to the Court proposing a new schedule for
bringing this case to a conclusion. After the Court has received that joint
report, it will issue a new trial scheduling order.
Accordingly,
IT IS ORDERED that Magistrate Judge David Jones’ report and
recommendation (Docket #141) be and the same is hereby ADOPTED and
counsel’s motion to withdraw (Docket #135) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that this district’s pro se staff attorneys
shall secure counsel to represent Mr. Saddy within twenty-one (21) days of
the entry of this order. After the Court has secured counsel to represent Mr.

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Saddy, the Court will require him to sign certain documentation agreeing to
be represented by that counsel; and
IT IS FURTHER ORDERED that Mr. Saddy’s unopposed motion to
stay proceedings in this case (Docket #137) be and the same is hereby
GRANTED; the dates provided in the Court’s previous trial scheduling
order (Docket #133) be and the same are hereby VACATED. Within twentyone (21) days of the appearance of Mr. Saddy’s new counsel, the parties shall
file a joint report proposing a new schedule for bringing this case to a
conclusion.
Dated at Milwaukee, Wisconsin, this 22nd day of February, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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