Mitchell v. Moungey et al

Filing 28

ORDER signed by Chief Judge William C. Griesbach on 4/4/18. Mitchell's 24 Motion to appoint counsel is DENIED without prejudice. Mitchell's 25 Motion to amend and supplement the complaint is DENIED without prejudice. Defendants are t o respond to Mitchell's 21 motions to compel and for 26 sanctions on or before 5/4/18. The parties must complete discovery by 6/7/18 and file dispositive motions by 7/9/18. (cc: all counsel and via US Mail to Kevin Mitchell)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KEVIN BRIAN MITCHELL,
Plaintiff,
v.

Case No. 17-C-920

ANDREW MOUNGEY,
MATTHEW BURNS,
TRACEY KAPPELL,
JENNIFER KACYON, and
JOHN DOE,
Defendants.

ORDER

Plaintiff Kevin Brian Mitchell filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that
his civil rights were violated. Presently before the court is Mitchell’s motion to appoint counsel,
motion to amend and supplement the complaint, motion to compel, and motion for sanctions. The
court will address each motion in turn.
A. Motion to Appoint Counsel
Mitchell has filed a motion to appoint counsel. Having given Mitchell’s request further
consideration, I now conclude that it should be denied. Civil litigants do not have a constitutional
or statutory right to appointed counsel. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc);
Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Yet, district courts have discretion to recruit
attorneys to represent indigent parties in appropriate cases pursuant to 28 U.S.C. § 1915(e)(1). As
a threshold matter, litigants must make a reasonable attempt to secure private counsel on their own.
Id. at 654. Once this threshold burden has been met, the Court must address the following question:

given the difficulty of the case, does this plaintiff appear competent to litigate it himself?” Id. at
654–55 (citing Farmer v. Haas, 990 F.2d 319, 321–22 (7th Cir. 1993)). Noticeably absent from the
list of factors Pruitt instructs district courts to consider in deciding such motions, but presumably
not wholly irrelevant, are the merits and substance of the plaintiff’s claim.
Under the Pruitt standard, Mitchell has failed to demonstrate a need for court-recruited
counsel. Here, Mitchell has not alleged that he is incompetent and has provided no specific evidence
to support a finding that he lacks the competency to represent himself. There are no “fixed
requirements” to determine whether a plaintiff is competent to litigate his own case. Id. at 655. A
district court may consider “the plaintiff’s literacy, communication skills, educational level, and
litigation experience.”

Id.

Information regarding “the plaintiff’s intellectual capacity and

psychological history” is also relevant. Id. Mitchell asserts that he has a limited knowledge of the
law and has received help from “jail house lawyers.” ECF No. 24 at 1. Despite these arguments,
this Court finds Mitchell competent to proceed pro se in this case.
It is not enough to say that a lawyer might do a better job handling the case, since that would
seem almost always to be the case. Rather, the question is whether the plaintiff would be unable to
coherently present the case to a judge or jury. Here, there is no indication in the record that
Mitchell’s education or intelligence is limited. Mitchell has failed to provide the Court with any
information about his general competence. He has also revealed an ability to litigate on his own
behalf. His filings are neatly typed and his arguments are cogent. In short, there is nothing in the
record to suggest that Mitchell does not have the same competence to represent himself as the vast
number of other pro se litigants who cannot afford to hire an attorney and are unable to convince
one to take their case on a contingent fee basis. In addition, this case is not complex. Mitchell’s
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claim appears to be a straightforward Eighth Amendment claim. Mitchell has knowledge of many
of the relevant facts concerning his claim. I conclude that the difficulty of this case—both factually
and legally—does not exceed Mitchell’s capacity to represent himself. Accordingly, at this time,
Mitchell’s motion to appoint counsel will be denied without prejudice. The Court will give further
consideration to Mitchell’s request as the case proceeds.
B. Motion to Amend the Complaint
Mitchell has also filed a motion to amend his complaint to substitute the proper defendant
for John Doe and to name the actual individual who put him in a headlock. Mitchell’s motion,
however, fails to comply with the local rule governing amendment of pleadings. Civil L.R. 15(b)
states:
A motion to amend a pleading must state specifically what changes are sought by the
proposed amendments. The proposed amended pleadings must be filed as an
attachment to the motion to amend.
Mitchell has failed to file a proposed amended complaint as an attachment to his motion. In other
words, his motion only states a desire to amend the complaint; it fails to provide a copy of the
proposed complaint he seeks to file. For this reason, Mitchell’s motion will be denied. The denial,
however, is without prejudice. To comply with the local rules, Mitchell need only take his original
complaint and substitute the new defendant’s name in all of the places he references John Doe and
name the proper defendant who put him in a headlock. Then he can refile this motion with the
proposed amended complaint. As the record now stands, however, Mitchell’s motion to amend and
supplement the complaint will be denied.
C. Motions to Compel and for Sanctions
Mitchell also filed a motion to compel and a motion to hold Defendants, Defendants’
attorney, and WCI in contempt and to sanction them. The Court directs Defendants to respond to
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Mitchell’s motions on or before May 4, 2018. The Court will extend the discovery deadline by thirty
days, until June 7, 2018, and extend the dispositive motion deadline until July 9, 2018.
IT IS THEREFORE ORDERED that Mitchell’s motion to appoint counsel (ECF No. 24)
is DENIED without prejudice.
IT IS FURTHER ORDERED that Mitchell’s motion to amend and supplement the
complaint (ECF No. 25) is DENIED without prejudice.
IT IS FURTHER ORDERED that Defendants are to respond to Mitchell’s motions to
compel and for sanctions on or before May 4, 2018.
IT IS FURTHER ORDERED that the parties must complete discovery by June 7, 2018
and file dispositive motions by July 9, 2018.
Dated this 4th day of April, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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