Burse v. State of Wisconsin

Filing 27

ORDER signed by Judge Lynn Adelman on 6/27/2014 Granting 24 Motion for Leave to Proceed in forma pauperis;Granting 11 Motion to Stay pending appeal; Denying without prejudice 25 Motion to Appoint Counsel; and Denying 26 Motion for an expedited ruling. (cc: all counsel, via US Mail to Appellant) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS L. BURSE,
Appellant,
v.

Case No. 13-CV-01200

STATE OF WISCONSIN,
Appellee.

DECISION AND ORDER
Pro se appellant Thomas Burse appeals from a judgment entered by the bankruptcy
court in an adversary proceeding finding that the debt appellant owes to appellee, the State
of Wisconsin, is non-dischargeable under 11 U.S.C. § 523(a)(2)(A). Before me are several
motions from appellant.
Ordinarily, a party appealing an ordered entered by the bankruptcy court must pay
a filing fee of $298. 28 U.S.C. § 1930. However, plaintiff has requested leave to proceed
in forma pauperis. The bankruptcy court declined to rule on this motion and transferred it
to this court for a ruling.
Under 28 U.S.C. § 1915(a)(1), an indigent party may commence “any suit, action
or proceeding, civil or criminal, or appeal therein,” in a federal court without paying required
costs and fees upon submission of an affidavit asserting inability “to pay such fees or give
security therefor” and stating “the nature of the action, defense or appeal and the affiant’s
belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). Section 1915 is meant
to ensure indigent litigants meaningful access to the federal courts, Nietzke v. Williams,
490 U.S. 319, 324 (1989), and applies to both non-prisoner litigants and to litigants who

are incarcerated, Floyd v. United States Postal Serv., 105 F.3d 274, 275–77 (6th Cir. 1997)
(“[T]he only logical interpretation of the statute is that non-prisoners have the option to
proceed in forma pauperis under § 1915(a).”).
Appellant has filed the required affidavit of indigence. Upon review of this affidavit,
I am satisfied that he meets the poverty requirements of 28 U.S.C. § 1915. He supports
himself, his spouse and one dependent on an income of $2647 per month and needs
$3650 per month to cover fixed expenses. Additionally, appellant has stated the grounds
for his appeal and asserted his belief that he is entitled to redress. Therefore, I will grant
his motion for leave to proceed in forma pauperis in this court.
Next, appellant moves to stay enforcement of the judgment in the bankruptcy case
pending appeal. Federal Rule of Bankruptcy Procedure 8005 governs the granting of a stay
pending appeal. It states that a motion for a stay pending appeal “must ordinarily be
presented to the bankruptcy judge in the first instance.” Fed. R. Bank. P. 8005. Appellant
did that in this case, and the bankruptcy court denied the motion. He now renews the
motion in this court. Appellee opposed the motion to stay in the bankruptcy court but has
since withdrawn its objection. Therefore, I will grant the motion and stay enforcement of
the judgment pending the outcome of this appeal. See Civil L.R. 7(d) (E.D. Wis.) (“Failure
to file a memorandum in opposition to a motion is sufficient cause for the Court to grant the
motion.”).
Next, appellant moves for the appointment of counsel. Although civil litigants do not
have a constitutional or statutory right to counsel, this court has the discretion to request
attorneys to represent indigents in appropriate cases pursuant to 28 U.S.C. § 1915(e)(1).
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); Ray v. Wexford Health Sources, Inc.,
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706 F.3d 864, 866–67 (7th Cir. 2013). When confronted with a request for counsel, a
district court must make the following inquiries: (1) has the indigent party made a
reasonable attempt to obtain counsel or been effectively precluded from doing so, and
(2) given the difficulty of the case, does the indigent party appear competent to litigate it
himself? Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). With regard to the
second inquiry, 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 on
the litigant’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.
In the motion to appoint counsel, appellant does not demonstrate that he has made
a reasonable attempt to obtain counsel on his own. Therefore, his request for
court-appointed counsel is premature, and I will deny the motion without prejudice.
However, if appellant contacts at least three attorneys about taking his case and none
does, then he may renew his request for appointed counsel, at which time I will examine
whether, given the difficulty of the case, appellant appears competent to litigate it himself.
Finally, appellant requests an expedited ruling on the merits of his appeal. I will deny
this motion because I do not see any need for any immediate ruling, especially in light of
the fact that I am staying enforcement of the bankruptcy court’s ruling. However, I reassure
appellant that I have taken his appeal under advisement and will issue a ruling on it in due
course. I will rule on appellant’s motions asking me to take judicial notice of various facts
when ruling on the merits of the appeal.

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THEREFORE, IT IS ORDERED that appellant’s motion for leave to proceed in
forma pauperis (Docket #24) is GRANTED.
IT IS FURTHER ORDERED that appellant’s motion for a stay pending appeal
(Docket #11) is GRANTED.
IT IS FURTHER ORDERED that appellant’s motion to appoint counsel (Docket #25)
is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that appellant’s motion for an expedited ruling (Docket
#26) is DENIED.
Dated at Milwaukee, Wisconsin, this 24th day of June, 2014.

s/ Lynn Adelman
LYNN ADELMAN
District Judge

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