Poff v. Pollard et al

Filing 52

ORDER signed by Judge J.P. Stadtmueller on 1/25/2017 DENYING without prejudice 50 Plaintiff's Motion to Appoint Counsel and for a Preliminary Injunction. (cc: all counsel, via mail to Jeff Poff at Columbia Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFF POFF,
Plaintiff,
v.

Case No. 15-CV-954-JPS

JOHN SCHETTLE, MAN LEE,
AMANDA COLE, and JASON
JACKSON,

ORDER

Defendants.
Plaintiff, a prisoner, brings this action pro se pursuant to 42 U.S.C.
§ 1983. This matter comes before the Court on Plaintiff’s motion for
appointment of counsel and for a preliminary injunction. (Docket #50). He
claims that he requires the appointment of counsel because he suffers from
post-traumatic stress disorder and because his “jailhouse lawyer” was
transferred to another institution. Id. He also asks the Court to enter an
injunction to stop retaliation from prison staff, although he does not describe
who engaged in this allegedly retaliatory conduct, nor what any particular
person did. Id. For the reasons stated below, both of Plaintiff’s requests must
be denied.
First, 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. banc 2007)). The Seventh
Circuit has emphasized that “[t]he question is not whether a lawyer would
present the case more effectively than the pro se plaintiff; ‘if that were the
test, district judges would be required to request counsel for every indigent
litigant.’” Pruitt, 503 F.3d at 655 (quoting Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006)) (internal quotation omitted). Instead, “[t]he question is
whether the plaintiff appears competent to litigate his own claims, given their
degree of difficulty, and this includes the tasks that normally attend litigation:
evidence gathering, preparing and responding to motions and other court
filings, and trial.” Id.
Plaintiff’s request fails on the first element, since he provides no
evidence whatsoever that he has made efforts to seek out representation on
his own. Russell v. Bukowski, 608 F. App’x 426, 428 (7th Cir. 2015). Moreover,
the Court finds that Plaintiff’s alleged post-traumatic stress disorder does not
automatically disable him from litigating this matter. Indeed, his submissions
thus far show that he can cogently present evidence and argument in support
of his positions. Further, while Plaintiff complains that he no longer has the
benefit of a jailhouse lawyer, the operative question is whether the case is too
complex for Plaintiff to litigate on his own; it is not whether a jailhouse
lawyer might do a better job. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th
Cir. 2014). Finally, the Court directs Plaintiff to its recent amended trial
scheduling order, where the Court cautions that it will not consider requests
for appointment of counsel until, at earliest, the close of discovery. (Docket
#51 at 5–6). Thus, the Court finds that Plaintiff is not entitled to appointed
counsel at this time.
Plaintiff’s request for a preliminary injunction is likewise without
merit. To obtain a preliminary injunction, Plaintiff must show: (1) that he is
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likely to succeed on the merits; (2) that he is likely to suffer irreparable harm
in the absence of preliminary relief; (3) that the balance of equities tips in his
favor; and (4) that an injunction is in the public interest. D.U. v. Rhoades, 825
F.3d 331, 335 (7th Cir. 2016). A preliminary injunction is “an extraordinary
remedy and is never awarded as of right.” Knox v. Shearing, 637 F. App’x 226,
228 (7th Cir. 2016). To meet his burden, Plaintiff must make a “clear showing
that he is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22 (2008). Here, Plaintiff asserts that he has suffered retaliation at the hands
of prison officials, but he gives no detail as to who retaliated against him or
what they did. As a result, Plaintiff has fallen well short of making the clear
showing needed to secure a preliminary injunction.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to appoint counsel and for a
preliminary injunction (Docket #50) be and the same is hereby DENIED
without prejudice.
Dated at Milwaukee, Wisconsin, this 25th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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