Moore v. Flynn et al

Filing 24

DECISION AND ORDER signed by Judge Pamela Pepper on 9/15/2015 DENYING 17 Defendant's Motion to Dismiss and GRANTING 23 Motion to Appoint Counsel. (cc: all counsel; by US Mail to Plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
LAMONDRE MOORE,
Plaintiff,
v.

Case No. 14-cv-1446-pp

MICHAEL VAGNINI,
Defendant.
______________________________________________________________________________
DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS
(DKT. NO. 17) AND GRANTING PLAINTIFF’S MOTION TO APPOINT
COUNSEL (DKT. NO. 23)
______________________________________________________________________________
The pro se plaintiff, Lamondre Moore, is a Wisconsin state prisoner. He
filed this case under 42 U.S.C. §1983, Dkt. No. 1, and the court granted his
petition for leave to proceed in forma pauperis, Dkt. No. 13. The complaint
alleges that the defendant, Milwaukee Police Officer Michael Vagnini, forcibly
removed him from his vehicle and penetrated his anus while searching him, in
violation of the Fourth Amendment to the United States Constitution. Dkt. No.
1. The defendant has filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), claiming that the statute of limitations bars the plaintiff’s
claim. Dkt. No. 17. The plaintiff has filed a motion to appoint counsel. Dkt. NO.
23. For the following reasons, the court will deny the defendant’s motion to
dismiss and grant the plaintiff’s motion to appoint counsel.
I.

ALLEGATIONS IN THE PLEADINGS
In support of his motion to dismiss, the defendant contends that

Wisconsin’s six-year statute of limitations on “personal rights” claims bars the
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plaintiff’s claim. Dkt. No. 17 at 1; Dkt. No. 18 at 1-2, citing Gray v. Lacke, 885
F.2d 399, 408 (7th Cir. 1989).
The complaint alleges that “[i]n year 2008,” at a gas station in the City of
Milwaukee, located at Teutonia and Keefe Avenues, the defendant assaulted
him physically and sexually. Dkt. No. 1 at 3-4. According to the defendant, a
review of law enforcement records submitted in support of his motion to
dismiss reveals that during 2008, there was one event which involved contact
between the plaintiff and the defendant at that location; that event occurred on
April 1, 2008. Dkt. No. 18 at 1-2. The defendant contends that the plaintiff’s
case is time-barred because he did not file this case until November 17, 2014
(six years and seven or so months after the date the defendant claims is
relevant). See Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009)
(section 1983 claims are subject to Wisconsin’s six-year personal rights statute
of limitations, Wis. Stat. §893.53); Wudtke v. Davel, 128 F.3d 1057, 1061 (7th
Cir. 1997); Gray v. Lacke, 885 F.2d 399, 407-09 (7th Cir. 1989).
In response to the defendant’s motion to dismiss, the plaintiff filed a
motion to appoint counsel. Dkt. No. 23. In that motion, he stated:
I have no money, and I am writing this motion to request an
attorney for case no. 14-cv-1446 for a lot of reason’s, when I was 4
year’s old I was burned over 98% of my body which still affects me
today, I have no fingers at all on my hand’s so I can not write, I’m
also on SSI, but my check is now cut off do [sic] to me being
incarcerated, also I have a learning disability[.] I can not read, so I
don’t understand what is going on in this case, I have no one to
assist me[.]
Dkt. No. 23 at 1.

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The plaintiff’s motion also addresses the defendant’s motion to dismiss.
The motion states that the plaintiff filed the complaint four and one-half
months late “because of my disability by not having any fingers to write, so it
took me some time to have it wrote [sic] up to get the lawsuit started[.]” Id.
II.

DISCUSSION
“In litigation involving a pro se party where matters outside the pleadings

are presented to the Court in conjunction with a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) . . . , the procedure set forth in Civil L.R. 56(a)(1)
applies.” Civil L.R. 12 (E.D. Wis.). Civil Local Rule 56(a)(1) provides:
(a) Pro Se Litigation.
(1) If a party is proceeding pro se civil litigation and the opposing party
files a motion for summary judgment, counsel for the movant must
comply with the following procedure:
(A) The motion must include a short and plain statement that any
factual assertion in the movant’s affidavit, declaration, or other
admissible documentary evidence will be accepted by the Court as
being true unless the party unrepresented by counsel submits the
party’s own affidavit, declaration, or other admissible documentary
evidence contradicting the factual assertion.
(B) In addition to the statement required by Civil L.R. 56(a)(1)(A), the
text to Fed. R. Civ. P. 56(c)(d) and (e), Civil L.R. 56(a), Civil L.R.
56(b), and Civil L.R. 7 must be party of the motion.
(2) This procedure also applies to motions to dismiss brought pursuant
to Fed. R. Civ. P. 12(b)(6) or motions for judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(c) where matters outside the pleadings
are presented to the Court.
Civil L.R. 56(a) (E.D. Wis.).
Here, the defendant submitted outdated versions of the Local Rules and
the Federal Rules of Civil Procedure in support of his motion to dismiss. See
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Dkt. No. 17. Even if the defendant had filed the current versions of the rules,
Christopher R. Marshall, who submitted a supporting affidavit, did not sign his
affidavit. See Dkt. No. 19. For these reasons, the court will deny without
prejudice the defendant’s motion to dismiss. The defendant may, if he chooses
to do so, correct these deficiencies, and may refile his motion within twenty-one
days of the date of this order.
With regard to the plaintiff’s motion to appoint counsel: In a civil case,
the court has discretion to decide whether to recruit a lawyer for someone who
cannot afford one. 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). First, however, the person has to make a reasonable effort to
hire private counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). After the plaintiff demonstrates that he has made that reasonable
attempt to find counsel, the court then must decide “whether the difficulty of
the case – factually and legally – exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.” Navejar, 718 F.3d at 696 (citing Pruitt, 503
F.3d at 655). To decide that, the court looks, not only at the plaintiff’s ability to
try his case, but also at his ability to perform other “tasks that normally attend
litigation,” such as “evidence gathering” and “preparing and responding to
motions.” Id.
Here, the plaintiff states that he tried to find an attorney on his own by
contacting six law firms, but that none of those law firms would assist him.

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Dkt. No. 23 at 1. The court finds that the plaintiff’s efforts qualify as a
“reasonable attempt” to find an attorney on his own.
Turning to the examination of the plaintiff’s claim and his abilities, the
court finds that plaintiff’s claim is not difficult – it involves a brief interaction
with one defendant. Additionally, the defendant’s motion to dismiss indicates
that the plaintiff’s complaint may be barred by the statute of limitations.
Despite the relative simplicity of the plaintiff’s claim and the early stage of this
case, however, the court concludes that this plaintiff needs an attorney to be
able to move forward. According to the plaintiff, he cannot write because he
does not have fingers, and he cannot read.1 Based on these factors, the court
will grant the plaintiff’s motion to appoint counsel.2 The court will attempt to
recruit an attorney to represent the plaintiff pro bono. The court will notify the
parties when it finds an attorney.
The court DENIES WITHOUT PREJUDICE the defendant’s motion to

1

 The court presumes that the plaintiff had assistance drafting the relatively

high-quality documents he has filed in the case so far. The court, however,
must evaluate the plaintiff’s capabilities, not the ability of anyone who may
have assisted him. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir.
2014). 

 The plaintiff has another civil case in this district, Moore v. Milwaukee, Case
No. 14-cv-745-WED (E.D. Wis.). In that case, Magistrate Judge William Duffin
granted the plaintiff’s motion for pro bono counsel based on the complexity of
the case (medical care claim) as well as his physical disability and his inability
to read.  
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dismiss. Dkt. No. 17.
The court GRANTS the plaintiff’s motion to appoint counsel. Dkt. No. 23.
Dated in Milwaukee this 15th day of September, 2015.

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