Rivers v. Johnson et al

Filing 30

ORDER signed by Judge Pamela Pepper on 5/7/2018 DENYING 20 Plaintiff's Motion for Reconsideration of the Appointment of Counsel ; DENYING AS UNNECESSARY 21 the Plaintiff's Motion to Amend/Correct the Complaint; GRANTING 27 Motion to Withdraw Declaration for Entry of Default; and DENYING 28 the Motion to Submit a Memorandum to Defendant's Answers. (cc: all counsel and copy sent to the plaintiff by US Mail on 5/7/2018) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DENZEL SAMONTA RIVERS,
Plaintiff,
v.

Case No. 17-cv-1496-pp

DOYAL JOHNSON and
LOISON KAST,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING THE PLAINTIFF’S MOTION FOR
RECONSIDERATION OF THE APPOINTMENT OF COUNSEL (DKT. NO. 20),
DENYING AS UNNECESSARY THE PLAINTIFF’S MOTION TO
AMEND/CORRECT THE COMPLAINT (DKT. NO. 21), GRANTING MOTION
TO WITHDRAW DECLARATION FOR ENTRY OF DEFAULT (DKT. NO. 27)
AND DENYING MOTION TO SUBMIT A MEMORANDUM TO DEFENDANT’S
ANSWERS (DKT. NO. 28)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint under 42 U.S.C. §1983, alleging that the defendant violated his
civil rights. Dkt. No. 1. On January 8, 2018, Magistrate Judge William Duffin
screened the complaint, and allowed the plaintiff to proceed with an Eighth
Amendment claim that the defendant showed deliberate indifference toward the
plaintiff’s suicidal inclinations. Dkt. No. 16. In that same order, Judge Duffin
denied without prejudice the plaintiff’s motion to appoint counsel, because the
plaintiff had not provided evidence showing that he had attempted to recruit
counsel on his own. Id. at 6-7.
On January 22, 2018, the Clerk of Court reassigned the case to this
court, because one or both parties had not consented to the magistrate judge
1 

making the final decision in the case. The plaintiff then filed a motion asking
the court to reconsider Judge Duffin’s decision and order denying his motion to
appoint counsel, dkt. no. 20, and a motion to amend/correct the complaint,
dkt. no. 21.
In the motion to amend/correct the complaint, the plaintiff explains that
he wants a jury as well as $95,000 in damages. Dkt. No. 21. There is no need
for the plaintiff to file another complaint; the court will construe the plaintiff’s
motion to amend/correct the complaint as a supplement to his original
complaint. The court will deny as unnecessary the plaintiff’s motion to
amend/correct the complaint.
In his motion to reconsider Judge Duffin’s denial of his motion to appoint
counsel, the plaintiff argues that on November 2, 2017, he provided the court
with the names of three lawyers. Dkt. No. 20. The court never received any
document dated November 2, 2017, and—up until it received this motion from
the plaintiff—never received any information about any attorneys that he
contacted. In this most recent motion, however, the plaintiff does list the
names of three lawyers he contacted, dkt. no. 20, and he provided the court
with the disbursement receipts that show that he paid for postage to mail
letters to these lawyers, dkt. no. 20-1.
The court is satisfied that the plaintiff has made reasonable attempts to
secure counsel on his own. It will not, however, appoint counsel at this time.
Once the plaintiff makes reasonable attempts to hire counsel, the court must
decide “whether the difficulty of the case—factually and legally—exceeds the
2 

particular plaintiff’s capacity as a layperson to coherently present it.” Navejar v.
Iyola, 718 F.3d 692, 696 (7th Cir. 2013)( citing Pruitt v. Mote, 503 F.3d 647,
655 (7th Cir. 2007). 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. “[D]eciding whether to recruit counsel ‘is a difficult decision:
Almost everyone would benefit from having a lawyer, but there are too many
indigent litigants and too few lawyers willing and able to volunteer for these
cases.’” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (quoting Olson
v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)).
The plaintiff’s complaint clearly describes what happened to him and
why he believes those events violated his constitutional rights. Although the
plaintiff has explained that he suffers from mental health issues, the court has
been able to understand what the plaintiff is saying. The plaintiff’s ability to tell
the court what happened is the most important consideration, because the
plaintiff’s most useful piece of evidence is his own testimony describing how
the defendant treated him. The plaintiff does not need medical experts or
strategic lawyering to show that the defendant refused to treat his suicidal
thoughts. If, as we move through the case, the legal procedures become more
complex, and the plaintiff finds himself unable to make his argument clear, he
can renew his motion for the appointment of counsel at that time.
After the plaintiff filed the above two motions, the defendants filed their
answer to the complaint. Dkt. No. 23. The court received the answer on March
3 

9, 2018, id.; three days later, the court received from the plaintiff a document
entitled “Declaration for Entry of Default.” Dkt. No. 24. In this declaration, the
plaintiff asserted that more than sixty days had elapsed since the date the
defendant was served with the complaint. Id. He asked the clerk to enter
default. Id.
The defendants accepted service on January 22, 2018. Dkt. No. 18. The
court received their answer on March 9, 2018—forty-six (46) days after they
accepted service. The defendants’ answer was timely, and default is not
appropriate. The plaintiff, however, has since asked the court for permission to
withdraw his declaration of default. Dkt. No. 27. The court will grant that
motion.
Finally, on March 16, 2018, the court received from the plaintiff a motion
to submit a memorandum to the defendant’s answer. Dkt. No. 28. The court
will deny this motion as unnecessary, for a couple of reasons. First, the
plaintiff appears to believe that, in answering the complaint and denying the
allegations in that complaint, the defendants were asking the court to dismiss
the case. Dkt. No. 28 at 1. The plaintiff is mistaken. By denying the allegations
in the complaint, the defendants simply were telling the court that they do not
agree with what the plaintiff has alleged. This is not unusual in lawsuits. If
everyone agreed with each other about what happened, there would be no need
for lawsuits. Once one side (the plaintiff) makes allegations about what
happened, and then the other side (the defendants) disagrees, the case is ready
to move forward to the next stage.
4 

Second, there will come a proper time for the plaintiff to make his
arguments as to why he believes that the defendant violated his rights. On
March 12, 2018, the court issued a scheduling order (the plaintiff likely had
not received that order at the time he filed his motion to submit a
memorandum). That order sets deadlines for the parties to exchange
information with each other (this is called conducting discovery). During the
discovery process, the plaintiff will be able to ask the defendant to answer
certain questions about what happened (Fed. R. Civ. P. 33) and will be able to
ask the defendant to produce reports or records that resulted from the alleged
events (Fed. R. Civ. P. 34).
The scheduling order also sets deadlines for the parties to file “dispositive
motions,” such as summary judgment motions, or motions to dismiss. The
plaintiff can present the court with his version of events, through an affidavit
or unsworn declaration under 28 U.S.C. §1746, in response to any motion for
summary judgment that the defendant might file.
The deadlines in the scheduling order have not expired. The parties
should, right now, be asking each other for discovery information—they have
until July 16, 2018 to complete that process. Once they’ve collected all of the
relevant information about the events, either party may file a dispositive
motion. The deadline for filing dispositive motions is August 20, 2018. Right
now, however, is not the appropriate time in the process for the parties to file
memoranda or legal arguments.

5 

Finally, the court notes that on March 16, 2018, the clerk’s office
received from the plaintiff a request, addressed to clerk of court Steve Dries.
Dkt. No. 29. In that request, the plaintiff asked Mr. Dries to tell the plaintiff
how he could get an affidavit or a declaration from a witness whose full name
the plaintiff does not know (he knows the person’s last name and inmate
number, but the person is on a different unit than the plaintiff). The plaintiff
should be aware that Mr. Dries is not permitted to give parties legal advice, or
to tell them how to litigate their cases. The court advises the plaintiff to look at
the discovery rules listed above. The purpose of discovery is to allow the
plaintiff to ask the defendants for information that he needs about the case. He
can ask the defendants to answer certain questions (such as asking for the full
name of the witness). He can ask the defendants for documents. The court
encourages the plaintiff to review the rules, but wants him to know that Mr.
Dries cannot give him advice.
The court DENIES the plaintiff’s motion for reconsideration of the
appointment of counsel. Dkt. No. 20.
The court DENIES as unnecessary the plaintiff’s motion to
amend/correct the complaint. Dkt. No. 21.
The court GRANTS the plaintiff’s motion to withdraw his declaration for
entry of default. Dkt. No. 27.
The court DENIES as unnecessary the plaintiff’s motion to submit a

6 

memorandum to the defendant’s answer. Dkt. No. 28.
Dated in Milwaukee, Wisconsin this 7th day of May, 2018.
BY THE COURT

__________________________________________
HON. PAMELA PEPPER
United States District Judge

7