Holifield v. Rivamonte et al

Filing 18

ORDER signed by Judge Pamela Pepper on 10/19/2016 DENYING 7 Plaintiff's Motion to Consolidate Cases; DENYING WITHOUT PREJUDICE 10 Plaintiff's Motion to Appoint Counsel; and DENYING 14 Plaintiff's Motion to Hold Case in Abeyance. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
AL HOLIFIELD,
Plaintiff,
v.

Case No. 16-cv-1291-pp

JONATHAN RIVAMONTE, et al.,
Defendants.
______________________________________________________________________________
DECISION DENYING PLAINTIFF’S MOTION TO
CONSOLIDATE (DKT. NO. 7), DENYING HIS MOTION TO
HOLD CASE IN ABEYANCE (DKT. NO. 14), AND DENYING WITHOUT
PREJUDICE HIS
MOTION TO APPOINT COUNSEL (DKT. NO. 10)
______________________________________________________________________________
Plaintiff Al Holifield is a state prisoner who is representing himself. On
September 27, 2016, he filed a complaint under 42 U.S.C. §1983, Dkt. No. 1,
along with a motion to proceed without prepayment of the filing fee, Dkt. No. 2.
On October 18, 2016, the court ordered him to pay an initial partial filing fee of
$35.73 by November 9, 2016. Dkt. No. 16. After the plaintiff pays the initial
partial filing fee, the court will screen his complaint to determine whether he
has stated claims against the named defendants.
Since filing his complaint, the plaintiff has filed a motion to consolidate
this case with and Case No. 14-cv-1486 (his habeas corpus petition against
Warden Paul Kemper and defendant Ronald Malone) (Dkt. No. 7); a motion to

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hold this case in abeyance (Dkt. No. 14); and a motion for the appointment of
counsel (Dkt. No. 10). This order addresses those three motions.

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I.

Motion to Consolidate
On October 13, 2016, the plaintiff filed a motion to consolidate this case

with case no. 14-cv-1486, Holifield v. Malone, Dkt. No. 7. Both cases are
pending before this court. The plaintiff explains that his request “is based on
the fact that most of the evidence that[’]s in support of the plaintiff’s complaint
is already on record in case #14-cv-1486.” Id. at 1. He goes on to request that,
if the court declines to consolidate the cases, the court provide the plaintiff
with a copy of the record in case no. 14-cv-1486. Id. at 2. (In a separate letter,
the plaintiff notified the court that he no longer has copies of the filings in case
no. 14-cv-1486, that he needs copies of those filings to support his claims in
this lawsuit, and that he has insufficient funds to pay for copies of those
filings. Dkt. No. 13.)
The district court has discretion to decide whether to consolidate cases.
Fleishman v. Prudential-Bache Securities, Inc., 103 F.R.D. 623, 624 (E.D. Wis.
1984). In order for a court to consider consolidation, there be common
questions of law or fact, “consolidation must not result in prejudice to a party,”
and the party seeking consolidation must show that consolidation would
“promote trial convenience and economy in administration due to factors other
than mere commonality of legal and factual issues.” Id. at 624-25. Factors that
courts consider in determining whether to consolidate include “judicial
economy, avoiding delay, and avoiding inconsistent or conflicting results.” Van

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Patten v. Wright, Nos. 07-C-788, 07-C-26, 2009 WL 1886010, at *2 (E.D. Wis.
June 30, 2009).
The court will not consolidate the plaintiff’s cases. Although the cases
arise from the same general set of facts, the legal issues, and relief the plaintiff
requests in each case, are very different. In his habeas case, the plaintiff (there,
the petitioner) asks the court to reverse his judgment of conviction and either
grant an evidentiary hearing or order a new trial. In this civil rights case, the
plaintiff asks for compensatory and punitive damages. The cases involve
different parties—the respondent in the habeas case is the warden of the
correctional facility where the petitioner is housed, while the defendants in his
civil rights case are police officers, police departments, and other law
enforcement agencies. It is not clear at this stage, but it is possible that the
plaintiffs in the civil rights case will end up being different than the petitioner
in the habeas case. The plaintiff filed the civil rights complaint in his name, as
well as in the names of his grandparents, Cora and Edward Holifield. The court
has ordered that if Mr. and Mrs. Holifield wish to be plaintiffs in this suit, they
must sign the complaint and file the signed copy with the court by November 4.
Dkt. No. 12.
In addition, the cases are at two very different stages. The plaintiff’s
petition for a writ of habeas corpus is fully briefed, and the court is considering
it for decision; the plaintiff filed this civil rights complaint only three weeks ago;
the court has not yet screened it. If the court were to grant the plaintiff’s
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motion to consolidate, it would have to significantly delay a decision in the
habeas case while the parties conduct discovery, and brief dispositive motions,
in the civil rights case. This would prejudice the plaintiff, the defendants in this
case, and the respondents in the habeas case.
It appears that the main reason the plaintiff wants the court to
consolidate the cases is that he filed, in the habeas case, the only copies he
had of documents that support his claims. He now believes that he needs those
documents to support his civil rights claims. He believes that if the court
consolidates the two cases, that will give him access (presumably free of
charge) to the documents he filed in the habeas case. This is not an
appropriate basis for the court to grant a motion to consolidate.
Even if the cases were appropriate for consolidation, the plaintiff would
not receive free copies of the documents he filed in the habeas case. If the
plaintiff would like to purchase copies of any documents he filed in the habeas
case, and wants to purchase them now (before the court has screened his civil
rights complaint), he may do so at a rate of $0.10 per page. Alternatively, the
plaintiff may wait to see whether the court allows the plaintiff to proceed on
claims in this civil rights suit. If the court does allow him to proceed beyond
the screening stage, he may then try to obtain the documents he believes he
needs from the defendants through discovery. (The plaintiff may not serve
discovery requests on the defendants in this case until after the court screens
his complaint and, if appropriate, enters a scheduling order setting a discovery
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deadline.) The court understands that many parties have difficulty affording
the costs associated with litigation, but the court does not have adequate
resources to cover those costs for litigants.
The court will deny the plaintiff’s motion to consolidate. Dkt. No. 7.
II.

Motion to Hold Case in Abeyance
On October 17, 2016, the plaintiff filed a motion to hold this case in

abeyance pending the outcome of his petition for a writ of habeas corpus. Dkt.
No. 14. The plaintiff explains that he expects a decision soon, and, if the
petition is granted, he intends to amend his complaint. Id. at 1. He also refers
the court to his motion to consolidate. Id.
The court will deny the plaintiff’s motion. As stated at the beginning of
this order, the plaintiff has not yet paid the initial partial filing fee in this case,
and the court has not yet screened the plaintiff’s complaint. In addition, the
court is not sure who the plaintiffs will be in this case; it has given the
plaintiff’s grandparents a deadline of November 4 to decide whether they wish
to join the case as plaintiffs. While it is true that the plaintiff’s habeas case is
fully briefed, the court is compelled to note that it has a substantial case load,
and cannot give the plaintiff a date by which it will decide his habeas case.
If the plaintiff is not ready to proceed with his civil lawsuit at this time,
he may voluntarily dismiss his complaint, and re-file it at a time of his
choosing (subject to the relevant statute of limitations). The court will not put
this case on hold while the plaintiff waits to see how his habeas case comes
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out, so that he may possibly amend his complaint dependent on that outcome.1
The court will deny the motion to hold in abeyance.
III.

Motion to Appoint Counsel
On October 13, 2016, the plaintiff filed a motion to appoint counsel,

along with copies of three letters he sent to attorneys in an attempt to secure
counsel on his own. Dkt. No. 10. The plaintiff explains that he has limited
education; he needs help with research, investigation, and obtaining discovery;
and the case is unusually complex. Id. at 1-2.
In a civil case, the court has discretion to recruit a lawyer for someone
who cannot afford one. Navejar v. Iyola, 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). However, the litigant must first make reasonable efforts to hire
private counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
Once the litigant makes reasonable attempts to hire counsel, the court then
decides “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). The court looks not only at the

 As an aside, the court notes that, on October 13, 2016, the plaintiff filed a
“Supplementation” to his complaint. Dkt. No. 9. The plaintiff explains that “he
forgot to mention” various allegations in his complaint. The court will not
consider these additional allegations when it screens his complaint because
they are not properly before the court. This court’s local rules prohibit plaintiffs
from filing a complaint in successive filings. If the plaintiff wants the court to
consider these additional allegations, he must file a single, amended complaint
that contains both the allegations he made in his original complaint and the
allegations he wishes to add.    
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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.
Most incarcerated plaintiffs who are representing themselves ask the
court to appoint counsel to represent them. Most of them are not lawyers, do
not have any legal training, do not have funds to hire an attorney, and have
limited access to legal research materials. The court does not have the
resources to pay lawyers to represent pro se plaintiffs, and there are not
enough lawyers in the community willing to volunteer their time to represent
all of the pro se plaintiffs who ask for counsel. Accordingly, the court must
consider carefully the Pruitt factors and appoint counsel only in complex cases
where it believes the plaintiff is not capable of clearly presenting his claims to
the court.
The plaintiff has satisfied the first Pruitt factor by demonstrating that he
made reasonable attempts to hire private counsel on his own. See Dkt. No. 8.
The court, however, will not recruit counsel to represent the plaintiff at this
time. The court is able to understand the plaintiff’s arguments and the relief he
seeks. His filings are organized, coherent, and include citations to relevant case
law. It is clear that he understands his claims and is able to present them to
the court. There may come a time when the legal issues involved in the case,
and tasks the plaintiff must complete, become so complicated that he is not
able to handle them on his own, but that time has not arrived. Because the
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court believes that the plaintiff is capable of representing himself through
discovery and the briefing of summary judgment, the court will deny his
motion for appointment of counsel without prejudice.
IV.

Conclusion
The court DENIES the plaintiff’s motion to consolidate case nos. 16-cv-

1291 and 14-cv-1486 (Dkt. No. 7).
The court DENIES the plaintiff’s motion to hold case in abeyance (Dkt.
No. 14).
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel (Dkt. No. 10).
Dated in Milwaukee, Wisconsin this 19th day of October, 2016.

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