Peters v. McCreedy et al
Filing
35
DECISION AND ORDER denying 31 MOTION to Appoint Counsel signed by Chief Judge William C Griesbach on 2/22/2018. (cc: all counsel via CM/ECF, George Peters via U.S. Mail)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GEORGE PETERS,
Plaintiff,
v.
Case No. 17-C-1115
BILL MCCREEDY, et al.,
Defendant.
DECISION AND ORDER
Plaintiff, George Peters, who is currently serving a sentence in the custody of the Wisconsin
Department of Corrections (DOC), filed this pro se civil rights action alleging that the defendants
violated the Eighth Amendment prohibition of cruel and unusual punishment by their deliberate
indifference to Plaintiff’s serious medical needs. The Court entered a screening order allowing
Plaintiff’s case to proceed on September 18, 2017. Currently before the Court is Plaintiff’s request
to appoint counsel. In support of his motion, Plaintiff states that he cannot afford an attorney and
has contacted two legal organizations, but both have declined to represent him. Having given
Plaintiff’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). The legal standard for deciding motions to
recruit counsel under § 1915(e)(1) in the Seventh Circuit requires the district court to consider the
difficulty of the case and the pro se plaintiff’s competence to litigate it himself. Pruitt, 503 F.3d at
649. 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.
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)). The
Court cannot say, at this time, that Plaintiff has meet this threshold burden. Plaintiff submits letters
he has received from Disability Rights of Wisconsin and the State Bar as his evidence that he has
attempted to recruit counsel. Neither of these contacts were made recently, and the Court cannot
say that contacting two organizations over three months ago is a “reasonable attempt to secure
private counsel.”
However, even if Plaintiff had made a reasonable attempt, I would still deny his motion
because under the Pruitt standard, Plaintiff has failed to demonstrate a need for court-recruited
counsel. Here, Plaintiff 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. Rather, Plaintiff asserts that he cannot afford to pay an attorney, therefore
one should be recruited to represent him. However, this is insufficient. The question is not simply
whether an individual can afford to hire an attorney or not, because many litigants cannot afford to
hire an attorney. Rather, the question is whether the plaintiff would be unable to coherently present
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the case to a judge or jury. Here, there is no indication in the record that Plaintiff’s education or
intelligence is limited. Plaintiff 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
written and his arguments are cogent. In short, there is nothing in the record to suggest that Plaintiff
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.
Although this case involves medical care, it is not complex. Plaintiff is proceeding on an
Eighth Amendment claim of deliberate indifference. He claims the defendants were unresponsive
to doctor recommendations about how to handcuff him post-surgery and caused him to re-injure his
shoulder. In Henderson v. Ghosh, the Seventh Circuit found that the district court abused its
discretion in failing to recruit counsel for an inmate who alleged prison health care providers and
other corrections employees were deliberately indifferent to his serious medical needs by failing to
inform him of his declining kidney health until he had “stage 5 kidney failure.” 755 F.3d 559 (7th
Cir. 2014). The plaintiff in that case, however, had a low IQ and a fifth grade education, was
functionally illiterate, and was inexperienced with civil litigation. Id. at 565. Moreover, in Garner
v. Sumnicht, the court held in an unpublished decision that the district court abused its discretion in
failing to recruit counsel for an inmate who alleged prison medical officials subjected him to cruel
and unusual punishment by refusing to provide treatment for his lactose intolerance. 554 F. App’x
500 (7th Cir. 2014). The inmate, however, claimed he was mentally ill. Id. at 501. Plaintiff makes
no such claims about his competency here. I conclude that the difficulty of this case—factually and
legally—does not exceed Plaintiff’s capacity to represent himself.
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Accordingly, at this time, Plaintiff’s motion to recruit counsel (ECF No. 31) is DENIED
without prejudice. The Court will give further consideration to Plaintiff’s request as the case
proceeds.
SO ORDERED this 22nd day of February, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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