Braithwaite v. Billie et al

Filing 27

ORDER signed by Judge Pamela Pepper on 1/18/2018. 18 Plaintiff's motion for protective order DENIED without prejudice. 20 Plaintiff's motion to appoint counsel DENIED without prejudice. (cc: all counsel, via mail to Joshua Braithwaite at Wisconsin Secure Program Facility) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSHUA P. BRAITHWAITE,
Plaintiff,
v.

Case No. 17-cv-706-pp

MITCHELL BILLE,
GERRAD KIBBEL,
RYAN HINTZ,
CO KEVIN BENSON,
and ADAM MARTIN,
Defendants.
______________________________________________________________________________
ORDER DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION FOR
PROTECTIVE ORDER (DKT. NO. 18) AND DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 20)
______________________________________________________________________________
Plaintiff Joshua Braithwaite is a Wisconsin state prisoner representing
himself. He filed this lawsuit alleging that the defendants failed to prevent him
from harming himself, in violation of the Eighth Amendment to the United
States Constitution. Dkt. No. 1. The plaintiff has filed a motion for a protective
order, dkt. no. 18, and a motion to appoint counsel, dkt. no. 20. The court
denies both motions.
The plaintiff has asked the court to issue a protective order limiting the
defendants’ access to his medical and psychological records. Dkt. No. 18. He
requests that the court limit the defendants’ access to his records such that
they can only access those portions of his records that are relevant to his
claim. Id. Along with his motion, the plaintiff includes an Authorization for
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Disclosure of Medical Information that the defendants requested him to sign.
Dkt. No. 18-1 at 2-3.
Federal Rule of Civil Procedure 26 states in relevant part:
A party or any person from whom discovery is sought may
move for a protective order in the court where the action is
pending[.] … The motion must include a certification that the
movant has in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute without
court action. The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense[.]
Fed. R. Civ. P. 26(c)(1). The plaintiff does not state that he conferred with the
defendants before filing his motion. He may satisfy that requirement by writing
to the defendants. But because the plaintiff has not conferred with the
defendants in an attempt to resolve this issue without involving the court, the
court will deny his motion for a protective order without prejudice. This means
he can file the motion again later if he is not able to work out his concerns with
counsel for the defendants.
The plaintiff also has filed a motion to appoint counsel. Dkt. No. 20. He
states that he cannot afford to hire an attorney and that his imprisonment will
greatly limit his ability to litigate. Id. at 1. The plaintiff also states that this case
involves complex issues that will require significant research and investigation
outside of his reach. Id. He asserts that he has limited access to the law library
and limited knowledge of the law. Id.
In a civil case, the court has discretion to decide whether 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
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F.3d 864, 866-67 (7th Cir. 2013). First, however, the person has to make a
reasonable effort to hire private counsel on his own. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). After the plaintiff makes that reasonable attempt to
hire 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 asserts that he attempted to find an attorney on his
own by contacting eleven attorneys. Dkt. No. 20 at 2. He attached to his motion
letters from two of the attorneys. Dkt. No. 20-1. In one of the letters, the
attorney said that he would consider representing the plaintiff if the plaintiff
would provide him with a complete set of his Health Service Unit records and
documentary evidence that the plaintiff has exhausted his administrative
remedies. Id. at 2. The plaintiff does not explain whether he provided the
attorney with the requested information. Because the plaintiff did not state in
his motion whether he’d provided the attorney with the documents (or even
whether he was able to do so), the court cannot conclude that he has made a
reasonable attempt to find an attorney on his own.
Even if the plaintiff had made a reasonable attempt to find a lawyer on
his own, on October 17, 2017, the plaintiff filed with the court the discovery
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requests that he had submitted to the defendants. Dkt. No. 22. These requests,
which include requests for production of documents, interrogatories and
requests for admissions, show that the plaintiff has the capacity to conduct
discovery and engage in pretrial motion practice on his own. The court will
deny without prejudice the plaintiff’s motion to appoint counsel without
prejudice; if there comes a time that he can (a) demonstrate that he has made a
reasonable effort to find counsel on his own, and (b) demonstrate that the case
has become too complex for him to handle, he may file another motion.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion for
protective order. Dkt. No. 18
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 20
Dated in Milwaukee, Wisconsin this 18th day of January, 2018.
________________________________________
HON. PAMELA PEPPER
United States District Judge

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