Riley v. Franke et al

Filing 20

ORDER signed by Judge J.P. Stadtmueller on 10/18/2017: DENYING without prejudice 17 Plaintiff's Second Motion to Appoint Counsel and DENYING 18 Plaintiff's Motion for Order Regarding Filing Fee Deductions. (cc: all counsel, via mail to Shawn Riley at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHAWN RILEY,
Plaintiff,
v.

Case No. 17-CV-891-JPS

JARED FRANKE, THOMAS
CAMPBELL, MARILYN
VANDERKINTER, and BRENDA
KARNZ,

ORDER
Defendants.
Plaintiff, who is incarcerated at the Wisconsin Secure Program
Facility, filed a pro se complaint claiming his civil rights were violated. See
(Docket #1). Before the Court are two recent motions: (1) Plaintiff’s second
motion requesting the appointment of counsel, (Docket #17); and (2)
Plaintiff’s motion for an order directing prison officials to return funds
deducted from his prison trust account for payment of the filing fee in this
case, (Docket #18). For the reasons stated below, both motions will be
denied.
1.

Second Motion for Appointment of Counsel
As a civil litigant, Plaintiff has no automatic right to court-

appointed 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. 2007) (en banc)). 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.
As with his first motion, which the Court addressed only a month
ago, see (Docket #14), Plaintiff’s request for counsel must be denied
because, notwithstanding his efforts to obtain his own counsel, he has not
presented any evidence or argument showing that he cannot litigate this
matter competently on his own. First, Plaintiff says that his lack of legal
training will limit his ability to litigate this case. (Docket #17 at 1).
Plaintiff’s lack of legal training, while unfortunate, brings him in line with
practically every other prisoner litigating in this Court. On its own, it is
not a sufficient reason for appointing counsel. Plaintiff’s point seems to be
that counsel would do a better job than he, but the Seventh Circuit has
rejected this as a basis for appointment of counsel. Pruitt, 503 F.3d at 655.
Moreover, the Court finds that, at least at this early stage in the
case, the issues presented are not so complex that Plaintiff cannot be
expected to adequately address them. Plaintiff’s only attempt to convince
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the Court otherwise is to state that the case is “difficult,” without
elaboration. (Docket #17 at 1). As a party seeking relief in this Court,
Plaintiff is expected to familiarize himself with the substantive and
procedural rules that will bear on his case. Plaintiff’s plea that he “is
entirely unaware as to what step must be taken next” is, therefore,
unpersuasive. Id. Likewise, the mere fact that Defendants are represented
by counsel is not a reason why Plaintiff should be afforded representation.
Finally, Plaintiff has not submitted any evidence that he suffers
from cognitive, behavioral, or other limitations affecting his ability to
present his arguments in a cogent fashion. See Henderson v. Ghosh, 755 F.3d
559, 565 (7th Cir. 2014). His filings thus far suggest that he has no such
limitation. As such, the Court concludes that recruitment of counsel in this
case is not justified at this time, and will deny Plaintiff’s motion for
appointment of counsel without prejudice. The Court further notifies
Plaintiff that, as will be explained in the forthcoming trial scheduling
order, the Court generally does not consider requests for appointment of
counsel until, at earliest, the close of discovery.
2.

Motion for Order Regarding Deductions for Filing Fee
Plaintiff’s other pending motion relates to the periodic deduction of

funds from his prison trust account. These deductions are made pursuant
to the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), which provides
that “[a]fter payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency having
custody of the prisoner shall forward payments from the prisoner’s
account to the clerk of the court each time the amount in the account
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exceeds $10 until the filing fees are paid.” 28 U.S.C. § 1915(b)(2). An order
to that effect was included in the screening order in this case. (Docket #14
at 18).
Plaintiff complains that prison officials are withholding funds in a
manner inconsistent with the statute. (Docket #18 at 1). According to him,
they deduct 20 percent of each crediting transaction to his prison trust
account although the statute requires deductions to be made on a monthly
basis. Id. Further, these officials reported to Plaintiff that they will deduct
20 percent from each crediting transaction until the amount of the
deductions reaches $10, at which time that amount will be sent to the
Clerk of this Court. Id. Plaintiff asks the Court to order this practice to
cease and for a refund of his erroneously withheld funds. Id. at 2.
Plaintiff’s position rests on an understandable but mistaken reading
of the statute. The first sentence of Section 1915(b)(2) unmistakably
requires prison officials to deduct 20 percent from all of a preceding
month’s income to pay toward a filing fee. The statute does not limit this
deduction to only deposits that exceed $10. Any income to the inmate,
regardless of source, is available for the 20 percent payments toward
unpaid filing fees. Lucien v. DeTella, 141 F.3d 773, 776 (7th Cir. 1998). The
prison officials in this case are ensuring that Plaintiff complies with his
obligations under the statute by taking 20 percent from each deposit as it
comes in. This is consistent with the first sentence of Section 1915(b)(2).
The second sentence of the statute is less clear. However, other
courts have heard and rejected Plaintiff’s interpretation of this sentence.
As explained in Williams v. Litscher, 115 F. Supp. 2d 989, 991–93 (W.D. Wis.
2000), modified on reconsideration, No. 00–cv–451, 2000 WL 34239347 (W.D.
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Wis. Dec. 1, 2000), the second sentence addresses when payments should
be forwarded to the court. “Read literally, the second sentence of
§ 1915(b)(2) appears to direct prison officials to wait to send a check to the
court until the balance of the prisoner's account exceeds $10. However,
this cannot be what Congress intended.” Id. at 991. Such a reading would
allow prisoners to avoid paying their filing fees simply by ensuring that
they never have more than $10 in their accounts. Id. To avoid such an
unreasonable result, the court in Williams interpreted the second sentence
to allow prison officials to wait to send a check to the court until a
prisoner’s accumulated deductions exceed $10. Id. This view results in the
payment of a prisoner’s federal filing fees no matter how small the
prisoner’s paycheck may be. Id.
This court, like others before it, finds the reasoning of Williams
persuasive. Smith v. Huibregtse, 151 F. Supp. 2d 1040, 1042–43 (E.D. Wis.
2001); Flournoy v. McKenzie, No. 14–cv–554–jdp, 2015 WL 4094357, at *2
(W.D. Wis. July 7, 2015). “The purpose of the second sentence of Section
1915(b)(2) is not to make sure that inmates have some balance in their
accounts to spend freely; it is to avoid the inefficiency of issuing a check
for a few cents every time an inmate receives a small deposit.” Flournoy,
2015 WL 4094357, at *2. Consequently, Plaintiff’s motion regarding the
monthly fee deductions must be denied.
Accordingly,
IT IS ORDERED that Plaintiff’s second motion for appointment of
counsel (Docket #17) be and the same is hereby DENIED without
prejudice; and

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IT IS FURTHER ORDERED that Plaintiff’s motion for an order
directing the return of monthly fee deductions (Docket #18) be and the
same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 18th day of October, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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