Barnes v. Brown County et al

Filing 81

ORDER signed by Judge Rudolph T. Randa on 8/7/2014. 37 Plaintiff's MOTION for Reconsideration/to Clarify DENIED; 60 Plaintiff's MOTION for Express Ruling Concerning Discovery DENIED; 63 Plaintiff's MOTION for Default Judgment/Con tempt DENIED; 80 Plaintiff's MOTION for Order to Use Release Account for Remainder of Filing Fee GRANTED, Warden to forward $38.79 to Clerk of Court within 21 days of the date of this Order. (cc: all counsel, via US mail to Warden and Lamon Barnes at Fox Lake Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LAMON LAMAR BARNES,
Plaintiff,
-vs-

Case No.

13-CV-607

BROWN COUNTY, BROWN COUNTY DRUG TASK FORCE,
DAVE POTEAT, JEFF LADE,
ZAK HOSCHBACH, MARK HACKETT,
JOHN LAUX, GUY SHEPARDSON,
INVESTIGATOR DERNBACH, JOHN AND JANE DOES 1-5,
VILLAGE OF ASHWAUBENON, CITY OF GREEN BAY,
JUJUAN JONES, and JANE AND JOHN DOES 1-3,
Defendants.

DECISION AND ORDER

On April 25, 2014, the Court screened the amended complaint pursuant to 28
U.S.C. § 1915A, denied the plaintiff’s motion for appointment of counsel, denied his request
for class certification, and denied his motion for a temporary restraining order/preliminary
injunction. The plaintiff has filed a motion for reconsideration and to clarify the Court’s
order. He has also filed a motion for express ruling concerning discovery, a motion for leave
to file default judgment or contempt orders, and a motion for order to use his release account
to pay the remainder of the filing fee. All of these applications will be addressed herein.
Motion for Reconsideration
The plaintiff contends that the Court erred when it denied his motion to appoint

counsel, to certify a class action, and his request for a temporary restraining order/preliminary
injunction. According to the plaintiff, the Court used too broad of language in denying his
motions. He also seeks clarification of the Court’s order to the extent it stated that, although
“not entirely clear,” his claims may be Heck-barred.
The plaintiff’s claims stem from the criminal investigation following his
January 11, 2011, arrest and subsequent charges of six counts of delivering cocaine. Upon
screening the complaint, the Court stated that while it appeared that most of plaintiff’s claims
were Heck-barred because they may necessarily imply the invalidity of his sentence, it was
not entirely clear that they were Heck-barred. (Court’s Order of April 25, 2014, at 5.) In
support of his motion for clarification, the plaintiff contends that his claims are not Heckbarred and that the issue of whether the police fabricated evidence leading to his conviction
is not a collateral attack on his conviction but rather is a proper claim under 42 U.S.C.
§ 1983. The plaintiff also contends that his remaining claims are clearly not Heck-barred.
He asserts that he knows that if he attacks the fact or duration of his confinement he will
need to litigate his claims in Wisconsin state court before seeking federal habeas corpus
relief.
The plaintiff is advised that no determination has been made as to whether any
of his claims are Heck-barred. This case is at an early stage and the Court will not make that
determination at this time. The defendants, most of whom have recently answered the
complaint, have not raised the issue. Accordingly, the Court will not provide additional

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clarification at this time as to whether any of the plaintiff’s claims may be Heck-barred.
The plaintiff also challenges the Court’s denial of his request for a temporary
restraining order/preliminary injunction to preserve the existing “unofficial files (all files,
documents, and digital evidence collected for DTF investigation 10-269)” so that he may
proceed with post-conviction remedies as well as attempt under 42 U.S.C. § 1983 to obtain
relief. (Court’s Order of April 25, 2014, at 6.) The Court denied the motion because there
was no indication as to the potential for the destruction of the files, it was not clear whether
the plaintiff’s criminal trial counsel sought to obtain the files, and the plaintiff had not
demonstrated a reasonable likelihood of success on the merits. In support of his motion for
reconsideration, the plaintiff asserts that his criminal defense counsel did unsuccessfully
attempt to obtain the files. He further asserts that failure to preserve the files will result in
irreparable harm. However, the plaintiff has not addressed whether there is any potential for
destruction of the files or the reasonable likelihood of success on the merits. Based on these
factors, the Court will not revise its order denying the plaintiff’s motion for a temporary
restraining order/preliminary injunction. The Court notes that a Scheduling Order will be
issued promptly and the plaintiff may then seek discovery from the defendants.
Additionally, the plaintiff seeks reconsideration of the denial of his request for
counsel. He asserts that, contrary to the Court’s order, his claim is not straightforward and
that, despite his best efforts to clarify his claims, the Court found that it was “not entirely
clear” whether the claims were Heck-barred.

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The Court denied the plaintiff’s motion to appoint counsel because his case is
straightforward and because his filings indicate that he is capable of litigating the case
himself. The Court also stated that, based on these factors, the presence of counsel would
not make a difference in the outcome of the case. The determination of the likelihood that
the presence of counsel would make a difference in the outcome of the case is for appellate
review and not for consideration by the district court. See Bracey v. Grondin, 712 F.3d 1012,
1016 (7th Cir. 2012). Therefore, the Court will consider the plaintiff’s motion to appoint
counsel anew.
The Court has discretion to recruit counsel to represent a litigant who is unable
to afford one in a civil case. Navejar v. Iyiola, 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).
As a threshold matter, litigants must make a reasonable attempt to secure private counsel on
their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). If the plaintiff makes a
reasonable attempt to secure counsel, the court must examine “whether the difficulty of the
case – factually and legally – exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 781 F.3d at 696 (citing Pruitt, 503 F.3d at 655). This
inquiry focuses not only the plaintiff’s ability to try his case, but also includes other “tasks
that normally attend litigation” such as “evidence gathering” and “preparing and responding
to motions.” Id.
The plaintiff has satisfied the threshold requirement of trying to find an

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attorney on his own. However, his filings in this case demonstrate that he is capable of
proceeding on his own. Specifically, the plaintiff’s filings reveal that he possesses a very
good knowledge of the legal issues in this case and of the law in general. It is evident that,
given the nature of the plaintiff’s claims, he is capable of conducting pre-trial discovery and
engaging in motion practice. Therefore, his motion for appointment of counsel will be
denied.
Finally, the plaintiff challenges the Court’s denial of his motion to certify this
case as a class action. The Court denied the motion because the plaintiff neglected to provide
any specific information about the potential number and identities of possible class members
and because, as a pro se litigant, he is not qualified to act as class representative. In support
of his motion for reconsideration, the plaintiff contends that the class is defined, i.e., “those
similarly situated that were convicted of felonies after trial or plea of guilty in Brown County
and sentenced to probation or imprisonment in the custody of the Wisconsin Department of
Corrections for drug trafficking when a confidential information was used.” (Mot. for
Recon. at 7.) Even if the plaintiff’s assertion satisfied the numerosity issue, the plaintiff is
still proceeding pro se and he may not, therefore, serve as class representative. Thus, his
motion for reconsideration will be denied.
Remaining Motions
The plaintiff has filed a motion for express ruling concerning discovery. He
asserts that he anticipates resistance from the defendants during discovery due to the sensitive

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nature of his claims and seeks a ruling outlining what information would be considered
privileged. The plaintiff’s motion is premature because discovery has not yet commenced
in this case. As stated earlier, the Court will issue a Scheduling Order promptly which will
set the deadline for discovery. The plaintiff is advised that the Court only becomes involved
in the discovery process if a party fails to respond to interrogatories or requests for
production of documents. Then the other party may file a motion to compel discovery with
the Court, but only after conferring or attempting to confer with the party failing to make
disclosure or discovery in an effort to obtain it without court action. Such an attempt to
resolve discovery disputes between parties is required before filing a motion to compel
discovery. The motion should describe these efforts. See Fed. R. Civ. P 37(a); Civil L. R.
37 (E.D. Wis.).
The plaintiff has also filed a motion for default judgment or contempt against
any defendant who fails to answer the complaint, namely, defendants JuJuan Jones, Village
of Ashwaubenon, and Jeff Lade. Since the plaintiff filed his motion, defendants Village of
Ashwaubenon and Lade have filed their answers. Defendant Jones, on the other hand, has
not been served. On June 6, 2014, a summons was issued as to defendant Jones and it has
not been returned yet. Therefore, Court action would be premature and the plaintiff’s motion
will be denied.
Lastly, the plaintiff has filed a motion for a court order to pay the remainder
of the filing fee from his release account so that he may use his regular account to effectively

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prosecute this case. The Prison Litigation Reform Act requires the Court to collect the filing
fee from a “prisoner’s account.” 28 U.S.C. § 1915(b). The term “prisoner’s account”
encompasses both a prisoner’s release account and general account. Spence v. McCaughtry,
46 F. Supp. 2d 861, 862 (E.D. Wis. 1999). However, “given the purpose of the release
account to provide funds to the prisoner upon his or her release from incarceration, the court
does not deem it prudent to routinely focus on the release account as the initial source of
funds to satisfy the filing fee payment requirements of the PLRA.” Smith v. Huibregtse, 151
F. Supp. 2d 1040 (E.D. Wis. 2001). Nevertheless, upon request, the Court will allow a
plaintiff to pay a filing fee out of his release account. Doty v. Doyle, 182 F. Supp. 2d 750,
752 (E.D. Wis. 2002). The plaintiff’s desire to have the remainder of the filing fee ($38.79)
deducted from his release account is clear. Therefore, his motion will be granted.
IT IS THEREFORE ORDERED that the plaintiff’s motion for
reconsideration and to clarify (Docket # 37) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for express ruling
concerning discovery (Docket # 60) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for leave to file
(Docket # 63) is DENIED.
IT IS FURTHER ORDERED that the plaintiff motion for order to use release
account (Docket # 80) is GRANTED.
IT IS FURTHER ORDERED that, upon request of the plaintiff, the warden

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at the correctional institution where the plaintiff is incarcerated shall withdraw $38.79 from
the plaintiff’s release account and forward that sum to the Clerk of this Court as the
plaintiff’s payment of the remainder of the filing fee in this action. Such payment is to be
made within twenty-one days of the date of this order.
IT IS ALSO ORDERED that a copy of this order be sent to the warden at Fox
Lake Correctional Institution.
Dated at Milwaukee, Wisconsin, this 7th day of August, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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