Beamon v. Wilke

Filing 98

ORDER signed by Judge J.P. Stadtmueller on 3/20/2018: DENYING without prejudice 96 Plaintiff's Motion to Appoint Counsel and DENYING 97 Plaintiff's Motion to Use Release Account Funds to Pay Balance of Appellate Filing Fee. (cc: all counsel, via mail to Earnest D. Beamon, Jr. at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EARNEST D. BEAMON, JR.,
Plaintiff,
Case No. 14-CV-136-JPS

v.

ORDER

JASON WILKE,
Defendant.

On January 12, 2018, this Court received the mandate from the
Seventh Circuit Court of Appeals, remanding the case for further
proceedings on Plaintiff’s retaliation claim against Defendant Jason Wilke.
(Docket #94). Thereafter, Plaintiff filed two motions that are now before the
Court for resolution.
First, Plaintiff filed a motion for appointment of counsel to represent
him during mediation of his remaining claim. (Docket #96). However,
neither party has requested a referral for mediation or otherwise indicated
that a mediation is set to take place. Further, Plaintiff’s motion sets forth no
reasons why appointment of counsel is necessary or warranted at this
juncture. As a civil litigant, Plaintiff has no automatic right to courtappointed counsel. Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997).
However, under 28 U.S.C. § 1915(e)(1), the “court may request an attorney
to represent any person unable to afford counsel.” The court should seek
counsel to represent the plaintiff if: (1) he has made reasonable attempts to
secure counsel; and (2) “‘the difficulty of the case—factually and legally—
exceeds the particular plaintiff’s capacity as a layperson to coherently

present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting Pruitt
v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)). Without any averments
from Plaintiff as to his own attempts to secure counsel and the basis for his
belief that prosecution of the remaining claim in this case exceeds his
competence, the Court cannot grant his motion. It will be denied without
prejudice.
Next, Plaintiff filed a motion to use his release account funds to pay
the balance of his appellate filing fee. (Docket #97). As the Court informed
Plaintiff in a previous order, see (Docket #91), this Court permits prisoners
to delve into their release account funds only very sparingly. In fact, the
only generally recognized instance where this is allowed is when a prisoner
needs release account funds to pay an initial partial filing fee. See Spence v.
McCaughtry, 46 F. Supp. 2d 861, 863 (E.D. Wis. 1999). This Court, like other
federal courts, does not deem it prudent to focus on the release account as
the source of funds to satisfy the full filing fee payment requirement. See
Smith v. Huibregtse, 151 F. Supp. 2d 1040, 1042 (E.D. Wis. 2001). As the
Seventh Circuit has instructed, “like any other civil litigant, [a prisoner]
must decide which of [his] legal actions is important enough to fund,”
Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003); thus, if a prisoner
concludes that “the limitations on his funds prevent him from prosecuting
[a] case with the full vigor he wishes to prosecute it, he is free to choose to
dismiss it voluntarily and bring it at a later date.” Williams v. Berge, No. 02CV-10, 2002 WL 32350026, at *8 (W.D. Wis. Apr. 30, 2002). He is not free,
however, to tap into his release account to cover those legal costs. In light
of the foregoing, the Court will deny Plaintiff’s motion to use release
account funds to pay the balance of the appellate filing fee.

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Accordingly,
IT IS ORDERED that Plaintiff’s motion for appointment of counsel
(Docket #96) be and the same is hereby DENIED without prejudice; and
IT IS FURTHER ORDERED that Plaintiff’s motion to use release
account funds for the balance of his appellate filing fee (Docket #97) be and
the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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