Reed v. Common Bond LLC

Filing 35

ORDER signed by Judge Pamela Pepper on 1/17/2019. 17 Plaintiff's motion to appoint counsel and motion to stay proceedings DENIED without prejudice. 31 Plaintiff's motion to appoint counsel DENIED without prejudice; motion for sanctions DENIED. 33 Plaintiff's motion to appoint counsel DENIED without prejudice; motion for accommodations DENIED. (cc: all counsel, via email and US mail to Linda Reed) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
LINDA REED,

Case No. 18-cv-263-pp

Plaintiff,
v.
COMMON BOND, LLC,
Defendant.
______________________________________________________________________________
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S
MOTIONS TO APPOINT COUNSEL (DKT. NOS. 17, 31, 33),
DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO STAY
PROCEEDINGS (DKT. NO. 17), DENYING PLAINTIFF’S MOTION FOR
SANCTIONS (DKT. NO. 31) AND DENYING PLAINTIFF’S MOTION TO
RECEIVE ACCOMMODATIONS (DKT. NO. 33)
______________________________________________________________________________
I.

Background Facts
On February 20, 2018, the plaintiff filed a lawsuit against Common

Bond, LLC. Dkt. No. 1.1 The complaint—the document that started the
lawsuit—is twenty-seven, single-spaced pages long, and contains 209
paragraphs of allegations and claims. It alleges that the plaintiff has multiple
health issues, including an untreatable brain disorder that impacts her speech
and her ability to process information, post-traumatic stress disorder,
adjustment disorder, “acute anxiety Tourette syndrome,” and blackouts. Dkt.

Whenever the reader sees a reference to “Dkt. No. ____,” that is a reference to
a particular document that one of the parties has filed with the court, based on
the docket number the clerk’s office assigned to the document.
1

1

No. 1 at ¶23. The complaint says that she “request[s] written accommodations.”
Id.
The plaintiff paid the $350 filing fee and the $50 administrative fee on
the same day she filed the complaint.
The defendant waived formal service of the complaint on February 28,
2018. Dkt. No. 4. A few weeks later, the court received a letter from the
plaintiff, discussing her visit to the clerk’s office to file the complaint. Dkt. No.
11. The letter reiterated that the plaintiff is disabled, and said, “I would like to
advise the court that from time to time I will need accommodations for my
disabilities.” Id. at 1. The letter says that in the plaintiff’s experience, the legal
process exacerbates her disabilities.2 Id.
On April 23, 2018, the defendant filed a motion to dismiss the plaintiff’s
lawsuit, dkt. no. 13, along with supporting documents, dkt. nos. 14-16. A little
over a week later, the court received a motion from the plaintiff, asking the
court to appoint a lawyer to represent her. Dkt. No. 17. The motion first
explained that the plaintiff had asked the defendant’s lawyer to accommodate
her disabilities—she asked the lawyer to “send all correspondences to me via
email and then a copy sent [United States Postal Service].” Id. She says that the

It appears that the plaintiff has experience in the legal system. She has filed
two other lawsuits in the Milwaukee federal court—Linda Reed v. Columbia St.
Mary’s, Case No. 14-cv-145-JPS (E.D. Wis.) and Linda Reed v. Columbia St.
Mary’s, Case No. 14-cv-330-JPS (E.D. Wis.). Her letter also refers to a
temporary restraining order and petition for a permanent injunction that she
says the defendant filed against her, and a hearing that took place before a
court commissioner in the Milwaukee County Courthouse, so it appears that
she has experience in state court litigation. Dkt. No. 11 at 1-2.
2

2

defendant’s lawyer has not been sending her documents by email, as she
asked. She also indicates that the defendant’s motion to dismiss was twentytwo pages long, and included “a bunch of papers copied from Westlaw;” she
argues that this amount of information was overly burdensome to her, and to
her seventh-grade granddaughter who helps her read documents. Id. The
plaintiff concluded by “asking that the court appoint [her] an attorney as an
accommodation for [her] disabilities,” and asking for “additional time/a stay of
[the] case until the court can get [her] help with [her] complaint.” Id.
About ten days later, the court received another letter from the plaintiff,
complaining that the defendant’s attorney was not accommodating the
plaintiff’s disabilities and was not sending her all the information defense
counsel was sending the court. Dkt. No. 18. The plaintiff asked that the court
either deny the defendant’s motion to dismiss “[o]r appoint an attorney for the
plaintiff as an accommodation for her disabilities and expand [her] reply time
to respon[d] to [the defendant’s] motion to dismiss.” Id. at 2.
The court did not promptly rule on the plaintiff’s requests for a lawyer.
Even so, on August 13, 2018, the court received the plaintiff’s response to the
defendant’s motion to dismiss. Dkt. No. 19. At the end of the eighteen-page
response, the plaintiff again asked the court to appoint her an attorney as an
accommodation for her disabilities. Id. at 18.
On September 6, 2018, the court also received from the plaintiff an
extensive objection to a declaration filed by one of the defendant’s attorneys.
Dkt. No. 24. The defendant has filed a motion to strike that filing. Dkt. No. 27.
3

This prompted the plaintiff to file another motion asking the court to appoint
her a lawyer (as well as asking the court to sanction the defendant’s lawyers).
Dkt. No. 31. In this motion, the plaintiff says that she asked the defendant’s
attorneys to send her documentation via email and to communicate with her
“via email only.” Id. at 1. The plaintiff complains that despite this request, the
defendant’s lawyers do not send her documents in a timely manner. She also
says that it confuses her that she receives documents and communications
from different lawyers and employees at the law firm that represents the
defendant; she says that this makes her feel threatened and ganged up on. Id.
After the court received this second motion to appoint counsel, it
concluded that perhaps it would be easier for the plaintiff if the court
scheduled a hearing, so that the court could speak to the plaintiff directly. The
plaintiff has told the court several times that her disabilities make it difficult
for her to understand things, so the court thought perhaps talking directly with
the plaintiff, rather than sending her written documents, might help her
understand. The court scheduled a hearing for January 16, 2019. After the
court sent out the notice of the hearing, however, the plaintiff called the court’s
chambers, and spoke with a member of chambers staff, Ms. Biskupic. The
plaintiff told Ms. Biskupic that she was concerned about being able to
understand what was going on at a hearing. Ms. Biskupic asked whether the
plaintiff wanted the court to cancel the hearing; the plaintiff said that she
wanted the court to hear her, and to hear her concerns. Ms. Biskupic

4

suggested that the plaintiff write down her concerns about the hearing, so that
the court could better understand.
The plaintiff accepted Ms. Biskupic’s suggestion and filed another letter.
Dkt. No. 33. She stated that she was “requesting accommodations under the
ADA, section 504 and all applicable laws.” Id. The plaintiff stated that she had
called the court because the notice of the hearing was confusing to her. She
wanted to know “whether a hearing and a status conference are the same
things.” Id. She also said she had called to request accommodation for her
disability, stating that “[t]he telephone call triggers the request for
accommodations.” Id. The plaintiff stated that she was “concerned that a
hearing is too much information for [her] to process and that her disabilities
will not allow [her] to participate in the hearing.” Id. She said that her past
experience in court has convinced her that she can’t defend herself without
time and patience; she says that this is true whether the hearing is in person
or over the phone. Id. She finished with the following request:
I am requesting accommodations for my disabilities as
follows: I need consistency in the documents that I receive. For
instance, is this a hearing or a status conference it needs to be
referred to like the same thing throughout the document. (2)
transparency and more details (3) I am requesting an attorney
for this hearing and any future hearing or appeals. (4) I am
requesting your accommodation ideas.
Id.
Given the concerns the plaintiff expressed, the court canceled the
January 16, 2019 hearing. The court notified the plaintiff of the cancellation in
two ways: Ms. Biskupic called the plaintiff and informed her that the court was
5

canceling the hearing, and the court issued a written order canceling the
hearing (dkt. no. 34), which Ms. Biskupic sent to the plaintiff via email.
II.

The plaintiff’s request for accommodations (Dkt. No. 33)
In the letter the court received on January 8, 2019, the plaintiff stated

that she was requesting accommodations under “the ADA, section 504 and any
and all applicable laws.” Dkt. No. 33. The court assumes that when she says
“ADA,” the plaintiff is referring to the Americans with Disabilities Act of 1990,
42 United States Code §12101-12117. The ADA prohibits discrimination
against people who have disabilities. (The plaintiff specifically mentioned
section 504 of the ADA. Section 504 is part of the Rehabilitation Act of 1973;
together with the ADA, it prohibits discrimination against children and adults
with disabilities in public schools and other settings.) The plaintiff has asked
the court for several accommodations for her disabilities.
First, each time the plaintiff has asked the court to appoint a lawyer to
represent her, she has indicated that she wants an appointed lawyer to
accommodate her disabilities. “[T]here is no requirement under the ADA that
courts provide legal counsel for a person with disabilities.” Douris v. New
Jersey, 500 Fed. App’x 98, 101 (3rd Cir. 2012). See also, Pinson v. Equifax
Credit Information Servs. Inc., 315 F. App'x 744, 749 (10th Cir. 2009) (‘To the
extent the [plaintiffs] contend the ADA and Rehabilitation Act required the
court to appoint counsel on its own volition, we find no support for the
proposition.”) The court acknowledges that the plaintiff is disabled, but the law

6

does not entitle her to a court-appointed lawyer as an accommodation for those
disabilities.
The plaintiff also asked for consistency in the documents that the court
sends her. The court does its best to communicate clearly and consistently
with all the people who have cases in front of it. It will try to communicate
clearly with the plaintiff. But while the court cannot discriminate against the
plaintiff based on her disabilities, the ADA does not require it to create a
special system just for her. As far as the court is aware, the ADA does not
require the defendant’s lawyers to create a special system just for the plaintiff,
either.
As a courtesy to the plaintiff, the court will answer her question about
the definition of “hearings” and “status conferences.” A “hearing” is an event
where the court speaks with the parties to a lawsuit, either in person or by
telephone. Any time the court speaks with the parties, it is conducting a
“hearing.” There are all kinds of hearings. There are “motions” hearings, where
the court talks with the parties about motions they have filed (and listens to
their arguments about those motions). There are “scheduling” hearings, where
the court talks with the parties about dates and times for filing documents or
having future hearings. There are “evidentiary” hearings, where the parties
present testimony and evidence in court. A trial is a special kind of hearing,
where a jury or a judge makes a final decision about who wins the lawsuit.
A “status conference” is a kind of hearing where the court talks with the
parties about the status of the lawsuit. Sometimes the court uses a status
7

conference hearing to ask the parties if they are making progress on
exchanging documents. Sometimes it uses a status conference hearing to ask
whether the parties are interested in having someone help them try to resolve
the case—someone like a mediator (a person who does not decide the case, but
who helps the parties talk through their disagreements). Sometimes the court
uses a status conference to ask the parties how much time they will need to do
something, or to ask whether the parties are ready to schedule a date for a
trial. In this situation, the court scheduled a “status conference” hearing for
January 16 because it thought that explaining some of the things the court
talks about in this order in person might be easier for the plaintiff than having
her try to read a written order. It appears that the court was wrong, and so it
canceled the status conference hearing.
Finally, the plaintiff asked the court for “transparency and more details.”
The court will do its best, but given that it has over 460 other civil cases, as
well as criminal cases, the court will not always be able to provide as much
detail or information as it has provided in this order.
III.

The plaintiff’s motions to appoint counsel (Dkt. Nos. 17, 31, 33)
There is a federal law—28 United States Code §1915(e)(1)—that gives a

federal judge broad discretion to appoint a lawyer to represent someone in a
civil case who is “unable to afford counsel.” A person asking the court to
appoint a lawyer to represent her first must demonstrate to the court that she
is “unable to afford counsel.” Most people who can’t afford a lawyer also can’t
afford to pay the case filing fee. They fill out a form, called a “Non-Prisoner
8

Request to Proceed in District Court Without Prepaying the Filing Fee.” That
form asks for information about the person’s income and expenses and other
financial information. The plaintiff in this lawsuit did not fill out that form,
because she did not ask to proceed without prepaying the filing fee. She has
paid the fee. So the court does not have any information about the plaintiff’s
financial situation; it does not know whether she is “unable to afford counsel.”
Even if the plaintiff demonstrates to the court that she is unable to afford
counsel—by, for example, filing an affidavit providing the information that the
“Non-Prisoner Request to Proceed in District Court Without Paying the Filing
Fee” asks for, the law would not require the court to appoint a lawyer for the
plaintiff. Many, many plaintiffs ask the court to appoint a lawyer to represent
them. Some of them are in prison. Some of them are in the hospital. Some of
them simply don’t have enough money to hire a lawyer. The court does not
have a pot of money that it can use to pay lawyers to represent people in civil
cases. The only way a court can appoint a lawyer to represent someone in a
civil case is by asking private lawyers to volunteer, and there are not enough
lawyers willing to volunteer to represent everyone who asks for a lawyer. For
that reason, the law in federal court in Wisconsin requires that before a court
can start looking for a volunteer lawyer for someone, that person first must
show the court that she has made a reasonable effort to hire a private lawyer
on her own. The case that established this requirement is Pruitt v. Mote, 503
F.3d 657, 653 (7th Cir. 2007). A person can prove that she made a reasonable
effort to find a lawyer on her own by providing the court with the names of at
9

least three lawyers whom she contacted, and who either refused to take her
case or didn’t respond.
Finally, even if a person shows the court that she cannot afford a lawyer,
and shows that she has made a reasonable effort to hire a lawyer on her own,
the court cannot appoint a lawyer until it has considered one other question:
“whether the difficulty of the case—factually and legally—exceeds the particular
plaintiff’s capacity as a layperson to coherently present it.” Navejar v. Iyola, 718
F.3d 692, 696 (7th Cir. 2013) (citing Pruitt, 503 F.3d at 655). The court looks,
not only at the person’s ability to try her case, but also at her ability to perform
other “‘tasks that normally attend litigation,’ such as ‘evidence gathering’ and
‘preparing and responding to motions.’” Id.
The plaintiff has not demonstrated that she is unable to afford counsel.
She has not demonstrated that she has made a reasonable effort to find a
lawyer on her own. But she has demonstrated that right now, she can
represent herself. Despite her disabilities, the plaintiff has filed an extremely
detailed complaint. She has filed several lengthy, detailed motions. She has
filed an extensive response to the defendant’s motion to dismiss. She has
mentioned statutes (both state laws and federal laws) and court decisions. She
has provided lots of facts. She has been able to explain her concerns in a way
that the court can understand them.
For these reasons, the court will deny the plaintiff’s motions to appoint
counsel. The court will deny these motions “without prejudice.” That means
that if things change in the future—if the plaintiff demonstrates that she is
10

unable to afford counsel, and if she shows that she has tried to hire a lawyer
on her own, and if she demonstrates that the case has reached a point where it
is too complicated for her to manage herself, she can ask the court again to
appoint a lawyer; she is not prohibited from renewing the request in the future
if the situation changes.
The court also notes that it often sets deadlines by which a party or a
lawyer must file something. The court understands that such deadlines may be
stressful for the plaintiff, but the court must set deadlines to keep cases
moving forward. If the plaintiff feels that she cannot meet a particular deadline,
she can always file a motion, asking the court to extend the deadline and
explaining how much extra time she needs.
IV.

Other motions
The court already has mentioned that the defendant has filed a motion to

dismiss the plaintiff’s case, and the plaintiff has responded to it. The plaintiff
also filed objections to a declaration filed by one of the defendant’s lawyers, and
the defendant has asked the court to strike that objection. The court will rule
on those motions in a separate order from this one.
V.

Conclusion
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to

appoint counsel and stay proceedings. Dkt. No. 17.
The court DENIES WITHOUT PREJUDICE the plaintiff’s second motion
to appoint counsel and DENIES her motion for sanctions. Dkt. No. 31.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
11

12

appoint counsel for future hearings and DENIES the plaintiff’s motion for
accommodations. Dkt. No. 33.
Dated in Milwaukee, Wisconsin this 17th day of January, 2019.
BY THE COURT:
___________________________________
HON. PAMELA PEPPER
United States District Judge

13