Riley v. Franke et al

Filing 64

ORDER signed by Judge J.P. Stadtmueller on 9/13/2018 DENYING 61 Plaintiff's Motion for Appointment of Counsel. (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,
Defendant.

ORDER

Plaintiff, who is incarcerated at the Wisconsin Secure Program
Facility, filed a complaint alleging that his civil rights were violated during
and after an alleged assault by correctional officer Jared Franke (“Franke”).
(Docket #58 at 1). The Court recently granted summary judgment to all
defendants save Franke himself. See id. at 21. Plaintiff’s claim of excessive
force under the Eighth Amendment against Franke will be tried to a jury on
October 22, 2018. (Docket #59). Presently before the Court is Plaintiff’s
fourth motion requesting the appointment of counsel. (Docket #61). For the
reasons stated below, the motion will be denied.
1.

BACKGROUND
As a civil litigant, Plaintiff has “neither a constitutional nor statutory

right to a court-appointed attorney.” James v. Eli, 889 F.3d 320, 326 (7th Cir.
2018). 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 a 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)). Whether
to appoint counsel in a particular case is left to the Court’s discretion. James,
889 F.3d at 326; McCaa v. Hamilton, 893 F.3d 1027, 1031 (7th Cir. 2018).
While framed in terms of the plaintiff’s capacity to litigate, this
discretion must also be informed by the realities of recruiting counsel in this
District. When the Court recruits a lawyer to represent a pro se party, the
lawyer takes the case pro bono. Unlike a lawyer appointed to represent a
criminal defendant during his prosecution, who is paid by the government
for his work, an attorney who takes a prisoner’s civil case pro bono has no
promise of compensation.
It is difficult to convince local lawyers to take such cases. Unlike
other districts in this Circuit, see, e.g., L. R. 83.35 (N.D. Ill.), the Eastern
District of Wisconsin does not employ an involuntary appointment system
for lawyers admitted to practice here. Instead, the District relies on the
willingness of lawyers to sign up for the Pro Bono Attorney Panel and, once
there, accept appointments as needed. See Pro Bono Program, available at:
http://www.wied.uscourts.gov/pro-bono-fund.
The District is eternally grateful to the lawyers who participate in the
Pro Bono Program, but there are never enough volunteers, and those who
do volunteer rarely take more than one or two cases a year. This is
understandable, as many are already busy attending to fee-paying clients.
Though the Pro Bono Program does provide for payment of certain
litigation expenses, it does not directly compensate a lawyer for his or her
time. Participants may seek attorney’s fees when permitted by statute, such
as in successful Section 1983 cases, but they will otherwise go unpaid. The

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small pool of attorneys available to this District for pro bono appointments
stands in stark contrast to that of the Court of Appeals, which regularly
recruits counsel from across the nation to represent pro se plaintiffs on
appeal. See, e.g., James, 889 F.3d at 323 (appointing counsel from
Washington, D.C. to represent the pro se appellant); McCaa, 893 F.3d at 1029
(same).
Against the thin ranks of ready and willing counsel rises the
overwhelming tide of pro se prisoner litigation in this District.1 In 2010,
approximately 300 civil actions were filed by prisoner litigants. More than
half sought habeas corpus relief, while the remainder were Section 1983
actions alleging violations of constitutional rights. Since then, the number
of habeas corpus cases has remained largely steady at around 130 per year,
while the volume of Section 1983 lawsuits has skyrocketed. About 300
Section 1983 actions were filed in 2014, and another 300 in 2015—each equal
to the entirety of the District’s civil prisoner filings from just four years
earlier. In 2016, Section 1983 actions numbered 385, and in 2017 it ballooned
to 498. This year, the District is on track to again receive around 500 Section
1983 complaints filed by pro se prisoners. All told, well over a third of the
Although non-prisoner pro se litigants may also be considered for the
appointment of counsel under Section 1915, the Court does not address that set of
pro se litigants here for a few reasons. First, the volume of non-prisoner pro se
litigation is miniscule compared to that brought by prisoners. Second, prisoners
are much more likely to request the appointment of counsel. Paradoxically,
prisoners are usually far better equipped to litigate than non-prisoners, as
prisoners have access to electronic filing, institution law libraries, and fellow
prisoners who offer services as “jailhouse lawyers.” Yet, learning a little of the
legal system means that prisoners know they can request the appointment of pro
bono counsel, which they do with regularity. Indeed, Plaintiff has sought the
appointment of counsel three times already.
1

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District’s new case filings are submitted by unrepresented inmates. On its
best day, this District has the resources to realistically consider appointment
of counsel in only a tiny fraction of these cases.
Moreover, hard data supports the conclusion that these prisoner
suits are frequently without merit. Since 1988, prisoners have generally lost
about 85% of the cases they bring. Margo Schlanger, Trends in Prisoner
Litigation, as the PLRA Enters Adulthood, 5 U.C. Irvine L. Rev. 153, 164 (2015).
Only around 5% of prisoner suits settle, and from 2002–2012, under 2%
made it to trial. Id. It is unsurprising, then, that local attorneys are unwilling
to take on prisoner litigation.
Finally, it must be remembered that when the Court determines that
counsel recruitment is appropriate, it can take months to locate a willing
lawyer. This delay works to the detriment of all parties and contravenes
Congress’ instruction in Federal Rule of Civil Procedure 1 that district
courts must endeavor to secure the “just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1. Thus, looming large over
each request for counsel are the Court’s ever-more-limited time and
resources.
2.

ANALYSIS
With these considerations in mind, the Court returns to the question

presented: whether counsel can and should be appointed to represent
Plaintiff for the trial in this case. First, the Court asks whether the litigant
has made “reasonable” efforts to obtain his own representation. Pruitt, 503
F.3d at 655; Jackson v. Cnty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). It
is a question not often litigated; many district judges either overlook

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arguably unreasonable efforts at obtaining counsel, or they impose
eminently practical requirements such as the submission of evidence
demonstrating that the prisoner has tried and failed to secure
representation from several lawyers. See, e.g., Kyle v. Feather, No. 09–cv–90–
bbc, 2009 WL 2474627, at *1 (W.D. Wis. Aug. 11, 2009). Here, Plaintiff has
submitted letters from many attorneys, all of whom have refused to take
his case. This is sufficient.
Plaintiff’s request falters on the second Pruitt step: whether the
difficulty of the case exceeds his capacity to coherently present it. This
assessment must be made in light of the particular capabilities and
circumstances presented by each pro se litigant. James, 889 F.3d at 326–27.
The Court of Appeals explains:
The second step is itself grounded in a two-fold inquiry
into both the difficulty of the plaintiff’s claims and the
plaintiff’s competence to litigate those claims himself. The
inquiries are necessarily intertwined; the difficulty of the case
is considered against the plaintiff’s litigation capabilities, and
those capabilities are examined in light of the challenges
specific to the case at hand. Ultimately, the 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. Rather, the question is whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff’s
capacity as a layperson to coherently present it to the judge or
jury himself. Notably, this inquiry extends beyond the trial
stage of the proceedings. The relevant concern is whether the
plaintiff appears competent to litigate his own claims, given
their degree of difficulty. This includes all of the tasks that
normally attend litigation: evidence gathering, preparing and
responding to motions and other court filings, and trial.

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Id. (citations and quotations omitted). While courts need not address every
concern raised in a motion for appointment of counsel, they must address
“those that bear directly” on the individual’s litigation capacity. McCaa, 893
F.3d at 1032.
The balancing contemplated in the second Pruitt step must also
incorporate the reality that district courts cannot be expected to appoint
counsel in circumstances which are common to all or many prisoners. See
Bracey v. Grondin, 712 F.3d 1012, 1017–18 (7th Cir. 2013); Pruitt, 503 F.3d 647,
656 (observing that the Seventh Circuit has “resisted laying down
categorical rules regarding recruitment of counsel in particular types of
cases”); Harper v. Bolton, 57 F. Supp. 3d 889, 893 (N.D. Ill. 2014). Doing so
would place untenable burdens on court resources. It would also turn the
discretion of Section 1915(e)(2) on its head, making appointment of counsel
the rule rather than the exception.
Several pronouncements from the Court of Appeals appear to be in
tension with this principle. First, the Seventh Circuit has noted that
“complexity increases and competence decreases as a case proceeds to the
advanced phases of litigation.” James, 889 F.3d at 327. The court deems the
“[a]dvanced phases” to include those from discovery onward. Id.; McCaa,
893 F.3d at 1032. But nearly every prisoner case proceeds to discovery, as
the district court applies exceedingly lenient review during initial screening
of cases under 28 U.S.C. § 1915A.
Second, the Seventh Circuit instructs that district courts should
evaluate a prisoner’s competency irrespective of the involvement of a
“jailhouse lawyer.” McCaa, 893 F.3d at 1033; Walker v. Price, No. 17-1345,

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2018 WL 3967298, at *5 (7th Cir. Aug. 20, 2018). How courts should do this
is not clear. The Court rarely knows whether a filing was prepared by the
plaintiff or someone helping him. And if the Court does know that the
plaintiff is receiving help, how can it assess his ability to litigate without
knowing which portions of the filings are his work, and which come from
the jailhouse lawyer? In Walker, the court determined that the inmate’s
work product decreased in quality after his jailhouse lawyer was
transferred to another prison. Walker, 2018 WL 3967298, at *6. Yet a savvy
prisoner, looking to secure counsel for himself, could do this on purpose,
crafting his filings to downplay his own litigation capabilities. The Court
would have no way to assess whether the inmate is sandbagging.
Finally, the Court of Appeals indicates that claims are particularly
complex when they touch on the defendant’s state of mind, such as with
claims of deliberate indifference to prison conditions or medical needs.
James, 889 F.3d at 327–28; McCaa, 893 F.3d at 1032. Yet a government
official’s culpable mental state is the foundation for most claims brought by
prisoners. Indeed, it is often the defining characteristic that sets Section 1983
claims apart from their state-law tort analogues. Deliberate indifference is
essential to nearly all claims of cruel and unusual punishment, excessive
force, mistreatment of serious medical needs, and First Amendment and
due process violations. See Kingsley v. Henderson, 135 S. Ct. 2466, 2473 (2015);
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998); Estelle v. Gamble, 429
U.S. 97, 106 (1976); Hambright v. Kemper, 705 F. App’x 461, 462 (7th Cir. 2017);
Milton v. Slota, 697 F. App’x 462, 464 (7th Cir. 2017) (“[N]egligently inflicted
harm does not amount to a constitutional violation.”) (emphasis in

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original). Taken together, these claims comprise the vast majority of
prisoner litigation in this District. If state-of-mind issues are generally
beyond the ability of most pro se litigants to prove, then counsel will likely
need to be appointed in nearly every prisoner case. This is plainly
impossible.
The guiding rule has always been that appointment of counsel is the
exception rather than the rule in pro se prisoner litigation. Yet a confluence
of all-too-common circumstances—discovery, jailhouse lawyers, and
claims concerning state of mind—militate in favor of the appointment of
counsel. As the list of reasons to appoint counsel grows, the reasons not to
do so shrink. This District’s resources have not kept pace.
Against this backdrop, the Court finds that Plaintiff has not
presented sufficient evidence or argument showing that he cannot litigate
or try this matter competently on his own.2 First, Plaintiff asserts that he
should be appointed counsel because he has no legal training and limited
access to the law library. Plaintiff’s lack of legal training, while unfortunate,
brings him in line with practically every other prisoner litigating in this
Court. Nor is Plaintiff’s limited access to the law library a matter this Court
should remedy with the provision of counsel, for many non-incarcerated
persons suffer from similar difficulties and yet are expected to pay for their
own lawyers if they want help with research or preparation of court filings.
Plaintiff makes no arguments in favor of the appointment of counsel in his
motion. (Docket #61 at 1). He simply gestures back at all of his prior submissions
and requests reconsideration of the earlier denials. Id. The Court’s prior evaluation
of Plaintiff’s arguments remains valid, but in the interest of completeness the
Court will take a fresh look at those arguments in view of the present posture of
the case and Plaintiff’s submissions to date.
2

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Plaintiff’s point seems to be that a lawyer would do a better job than he, but
the Seventh Circuit has rejected this sort of reasoning. Pruitt, 503 F.3d at
655.
Indeed, it is worth pointing out that unlike a non-prisoner pro se
litigant, who is generally a member of society with common demands upon
his time like work and family obligations, prisoners like Plaintiff have more
than sufficient discretionary time to attend to their litigation tasks and
develop their case. Perhaps prison conditions are not ideal for that work,
but the time they have available to do the work should ease some of the
burden associated with those conditions.
Moreover, as a litigant in this Court, Plaintiff is under an obligation
to familiarize himself with the relevant legal standards and procedural
rules. The Court assisted Plaintiff in this regard, as it does with all prisoner
litigants, by providing copies of the most pertinent federal and local
procedural rules along with its trial scheduling order. Thus, ignorance of
the law or court procedure is generally not a qualifying reason for
appointment of counsel.
Despite his claimed lack of ability, Plaintiff’s submissions thus far
show that he can cogently present his version of the facts and his legal
arguments. Notably, his claims against the now-dismissed defendants
failed not because Plaintiff’s submissions were infirm, but because the
claims were wholly meritless or had not been properly exhausted. See
(Docket #14); (Docket #58). Plaintiff’s lack of legal training and access to the
law library have not yet had a meaningful effect on his presentation.

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Second, it is noteworthy that Plaintiff has submitted no 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); Walker, 2018 WL 3967298, at *5 (noting that
courts should consider “any available evidence” of the prisoner’s literacy,
communication skills, education level, litigation experience, intellectual
capacity, or psychological history). His filings to date suggest that he has
no such limitation. Plaintiff counters that those filings have been prepared
with the help of another inmate, though he does not explain the extent of
his helper’s involvement. Courts must consider whether prisoners have
received aid in crafting their submissions, McCaa, 893 F.3d at 1033, but
absent evidence showing that he could not litigate on his own, the Court
will not conclude that Plaintiff is incapable without help. In other words,
Plaintiff cannot conceal or downplay his own litigation capabilities in order
to secure the appointment of counsel, nor will the Court assume, without
evidence, that Plaintiff’s solo presentation will be less articulate than the
record reflects thus far. See Walker, 2018 WL 3967298, at *6.
Third, Plaintiff suggests that the fact of his incarceration militates in
favor of appointing counsel. Were this true, it would be hard to deny any
prisoner litigant a lawyer. More to the point, Plaintiff has not argued, much
less shown, that his incarceration has limited his ability to gather evidence
and compose pleadings. Although incarcerated, Plaintiff is able to send and
receive correspondence, make copies, write motions and briefs, and
perform legal research. What more he needs to be able to do, he does not
say. McCaa, 893 F.3d at 1032–33 (faulting district court for failing to address

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plaintiff’s specific arguments about his inability to gather and present
evidence).
Fourth, the Court finds unavailing Plaintiff’s cursory claim that the
case is too complex for him to try. As it stands, the only claim that will be
tried is the straightforward excessive-force claim against Franke. Presenting
this claim will not involve expert testimony or medical evidence. Further,
while the claim centers on Franke’s state of mind, the Court does not find
that this will make the trial complex. James, 889 F.3d at 327–28.
In all likelihood, trial will simply be Plaintiff telling his version of the
story, Franke telling his, and the jury deciding who is telling the truth. See
Walker, 2018 WL 3967298, at *5 (finding that medical claims are not per se
complex and that the prisoner’s medical claims were simpler than most, as
they focused on which party—the prisoner or the guard—was to be
believed). Despite the need to prepare for presenting evidence and
engaging in cross-examination, many prisoner litigants in this branch of the
Court have ably tried excessive-force claims in the past. Plaintiff and his
case do not appear to be meaningfully different. Thus, while the case is
approaching its most advanced phase, this fact does not demand the
appointment of counsel. Id. at 327; see also Walker, 2018 WL 3967298, at *6
(finding abuse of discretion in denying counsel to prisoner who could not
ably litigate without jailhouse lawyer, who had been transferred, and faced
a jury trial by videoconference).
3.

CONCLUSION
None of the relevant considerations concerning Plaintiff’s claims, his

abilities, or his circumstances, whether considered separately or as a whole,

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convince the Court that counsel should be appointed to represent him at
this time. Thus, the Court will deny Plaintiff’s motion for appointment of
counsel.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for appointment of counsel
(Docket #61) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of September, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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