Tripi v. Roundy's Supermarkets Inc

Filing 5

ORDER signed by Judge Pamela Pepper on 2/26/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee DENIED without prejudice. 3 Plaintiff's Motion to Appoint Counsel DENIED without prejudice. By end of day 3/16/2018 plaintiff to file amended Non-Prisoner Request to Proceed in District Court Without Prepaying the Filing Fee. Failure to do so will result in denial of plaintiff's request to proceed without prepaying the filing fee and requirement that he pay it by a date certain. (cc: all counsel, via mail to Charles Tripi-with copy of Non-Prisoner Request to Proceed in the District Court Without Prepaying the Filing Fee) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CHARLES N. TRIPI,
Plaintiff,
v.

Case No. 17-cv-500-pp

ROUNDY'S SUPERMARKETS INC.,
Defendant.

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTIONS FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT.
NO. 2) AND TO APPOINT COUNSEL (DKT. NO. 3), AND REQURING
PLAINTIFF TO FILE AN AMENDED NON-PRISONER REQUEST TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING THE FILING FEE

The plaintiff, who is representing himself, filed a complaint against the
defendant, who allegedly refused to hire him on August 8, 2016 after the
plaintiff said he would need reasonable accommodations. Dkt. No. 1. Along
with the complaint, the plaintiff filed a dismissal and notice of rights from the
Equal Employment Opportunity Commission, dated January 3, 2017. Id. at 6.
The plaintiff also filed a Non-Prisoner Request to Proceed in District Court
Without Prepaying the Filing Fee, dkt. no. 2, and a motion to appoint counsel,
dkt. no. 3. Because the plaintiff has provided incomplete financial information,
the court will deny without prejudice his motion to proceed without prepaying
the filing fee. The court also will deny without prejudice his motion for
appointment of counsel.

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I.

Motion to Proceed Without Prepayment of the Filing Fee
A court may allow a plaintiff to proceed without prepayment of the filing

fees if two conditions are met: (1) the plaintiff is unable to pay the filing fee;
and (2) the case is not frivolous nor malicious, does not fail to state a claim on
which relief may be granted and does not seek monetary relief against a
defendant that is immune from such relief. 28 U.S.C. §§1915(a) and (e)(2).
The plaintiff’s April 6, 2017 Non-Prisoner Request to Proceed in District
Court Without Prepaying the Filing Fee is incomplete. In the request, the
plaintiff stated that he is married, that his spouse is employed, and that they
have two dependents (ages 15 and 18). Dkt. No. 2 at 1. In the field for monthly
income, the plaintiff listed $79,104 and $1,592, but then crossed out those
numbers and wrote “0.” He listed his spouse’s total monthly wages as $60,000,
then crossed that out and wrote “$3,500 (estimate) (gross).” He reported
receiving SSDA of $1,592 per month. The plaintiff has a monthly mortgage
payment of $1,681.16, a car payment of $112.31 and other household
expenses of $2,000. Although he stated that he has additional monthly
expenses, he wrote the word “conceal” when asked to identify those expenses.
The plaintiff reports owning a 2010 pickup truck that he values at $15,000 and
a house valued at $250,000, but states that there is no equity in the home. He
reports having $200 in cash, checking or savings accounts. At the end of the
application, he stated, “I am on SSDA/SSI and my wife’s income are separated.
I am unable to pay for upfront fees based on my SS.” Dkt. No. 4 at 2.

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The court cannot determine, from this information, the plaintiff’s
financial situation. He says that his monthly disability payment is $1,592, but
he lists expenses (the mortgage, the car and the “other” expenses) of
$3,793.47—and that does not include the “concealed” expenses the plaintiff
has refused to reveal. Clearly, he is not actually paying $3,793.47 a month out
of his disability check. Perhaps his spouse pays all of the household expenses,
and he does not contribute. If that is the case, he can pay the filing fee out of
his disability check. The financial affidavit requires parties to provide their
entire household income, including spousal income. The plaintiff does not
explain why the court should not consider his household income—does he
truly have no access to his spouse’s income? Why not? Further, the affidavit
requires parties to state truthfully, under oath, all of their income and
expenses. A party cannot come to the court for help, ask to be relieved of the
obligation to pay the filing fee, and then refuse to provide full and accurate
information about that party’s financial situation.
The court will give the plaintiff an opportunity to file an amended NonPrisoner Request to Proceed in District Court Without Prepaying the Filing Fee,
to provide the court with full, accurate information in support of his request. If
the plaintiff files an updated, accurate, complete Request, the court will
determine whether the plaintiff must pay all or a portion of the filing fee and
whether the case is “(i) is frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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II.

Motion to Appoint Counsel
In a civil case, the court has discretion to decide whether to recruit an

attorney 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). First, however, the person has to make a
reasonable effort to hire private counsel on her own. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). Generally, in this district, a plaintiff is required to
contact at least three attorneys in an effort to hire counsel on his own. A
plaintiff must provide the court with the names of the attorneys he contacted
as well as the dates of contact and copies of any letters the plaintiff received in
response to the contact.
After the plaintiff makes that reasonable attempt 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). 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’s motion contains one sentence: “I am requesting a
court-appoint federal defend attorney at no charge.” Dkt. No. 3. The plaintiff
mentions a federal defender, but the court has the authority to appoint federal
defenders only for people who are charged with criminal offenses. Federal
defenders cannot represent plaintiffs in civil cases.
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The plaintiff does not indicate whether he has tried to find a lawyer on
his own. There are organizations that help people who can’t afford to hire their
own lawyers (such as the Legal Aid Society of Milwaukee and Legal Action of
Wisconsin), and organizations who help people find lawyers who will represent
them at reduced costs (the Milwaukee Bar Association’s Lawyer Referral
Service, www.milwbar.org, or 414–274–6768). The plaintiff must show the
court that he has tried to find a lawyer on his own in order for the court to
consider whether to appoint counsel.
Even if the plaintiff had tried to find a lawyer on his own and had
demonstrated that to the court, the court would not grant his request at this
time. The court has read the plaintiff’s complaint, and understands what he
has alleged. Right now, the only thing the court needs the plaintiff to do is to
file an accurate, complete financial affidavit. Once he does that, the court will
decide whether to allow him to proceed without paying the filing fee, and will
screen his complaint. There is nothing for a lawyer to do for the plaintiff at this
time.
III.

Conclusion
The court DENIES WITHOUT PREJUDICE the plaintiff's Non-Prisoner

Request to Proceed in District Court Without Prepaying the Filing Fee. Dkt. No.
2.
The court ORDERS that by the end of the day on March 16, 2018, the
plaintiff must file an amended Non-Prisoner Request to Proceed in District
Court Without Prepaying the Filing Fee. If the court does not receive the
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amended request by the end of the day on March 16, 2018, the court will deny
the plaintiff’s request to proceed without prepaying the filing fee, and will
require him to pay it by a date certain.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 3.
Dated in Milwaukee, Wisconsin this 26th day of February, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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