Clark v. Doe #1 et al

Filing 48

ORDER signed by Judge J P Stadtmueller on 4/24/2019: DENYING 29 Plaintiff's Motion to Appoint Counsel and DISMISSING without prejudice Defendants John Does #1-8. (cc: all counsel, via mail to Shane Clark at Kettle Moraine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHANE CLARK,
Plaintiff,
v.
NATHAN HAYNES, CHRISTOPHER
WINTERS, KYLE DEMERS, PATRICK
MAHONEY, SERGEANT NATHAN
WOLF, LACEE SMELCER, COLETTE
HLYSTEK, JIMMY MUTCHIE, CO
BRITTANY MCCUTCHEON, and
JOHN DOES #1-8,

Case No. 18-CV-809-JPS

ORDER

Defendants.
On October 18, 2018, Plaintiff filed the operative complaint in this
action, alleging that his civil rights were violated when he was denied his
psychotropic medications at the Wisconsin Resource Center. (Docket #20).
The Court screened the complaint and allowed Plaintiff to proceed on his
Eighth Amendment claim of deliberate indifference. (Docket #23). On
March 12, 2019, Plaintiff filed a motion to appoint counsel. (Docket #29).1
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

On February 4, 2019, the Court ordered Plaintiff to identify the John Doe
defendants by April 5, 2019, or they would be dismissed without further notice.
(Docket #27). In light of the fact that the Court has not received anything further
from Plaintiff, the John Doe defendants will be dismissed without prejudice.
1

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
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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
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.2 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, in 2017 it ballooned to
498, and in 2018 it grew to 549. All told, well over a third of the District’s

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.
2

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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.
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’s 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.
With these considerations in mind, the Court returns to the question
presented: whether counsel can and should be appointed to represent
Plaintiff at this stage 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. Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). It is
a question not often litigated; many district judges either overlook 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, 2009 WL 2474627, at *1 (W.D. Wis. Aug. 11,
2009).
The first element of Pruitt is fairly easy to satisfy, but it is not
toothless, and it is not a mere technical condition of submitting a certain
number of rejection letters. If it was, then a Wisconsin prisoner litigating a
Section 1983 action could submit rejection letters from ten randomly
selected criminal defense lawyers from Nevada and call his work complete.
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This cannot be. The purpose of the reasonable-efforts requirement is to
ensure that if the Court and private lawyers must expend scarce resources
to provide counsel for a prisoner, he has at least made a good-faith effort to
avoid those costs by getting a lawyer himself. To fulfill this duty, a pro se
prisoner should reach out to lawyers whose areas of practice suggest that
they might consider taking his case. If he learns that some of the lawyers he
has contacted do not, he should reach out to others before he concludes that
no one will help him.
In this case, Plaintiff has provided evidence that he made reasonable
efforts to secure counsel. (Docket #30). He attached letters that he wrote to
eight different civil litigators in Wisconsin and included all response letters
that he received. (Docket #30-1). While not all attorneys that Plaintiff
contacted practiced civil rights, see id. at 4, it appears that some did, see id.
at 1–3. However, even if Plaintiff had made reasonable efforts to secure
counsel, his motion 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
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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.
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.
Against this backdrop, the Court assesses Plaintiff’s arguments that
he cannot competently litigate this matter on his own. Plaintiff contends
that the sheer number of claims and defendants in the case make it factually
complex. (Docket #30 at 2). He further argues that because the claims
“involve the denial of medication, it will probably be necessary to present
a medical expert witness, or to cross examine medical witnesses called by
the government, or both.” Id. (citing Jackson v. Cty. of McLean, 953 F.2d 1070,
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1073 (7th Cir. 1992)). In Jackson, the Court determined that an appointment
of counsel was appropriate because it was “highly probable that [Plaintiff]
would not have recognized the need to call expert witnesses to present a
prima facie case.” Id. At this stage in the proceedings—i.e., at the summary
judgment deadline—it is clear from Plaintiff’s submissions that he
understands the type of evidence that is needed or that may be presented
at trial. Moreover, the other two cases that Plaintiff cites in support of his
arguments are distinguishable. In Montgomery v. Pinchak, the defendants
repeatedly ignored the plaintiff’s discovery requests, and the plaintiff
became increasingly unable to navigate the discovery process and create a
factual record in a case where a medical expert was necessary. 294 F.3d 493,
504 (3d Cir. 2002). In this case, Plaintiff has not suggested that he has been
unable to compile the evidence needed to establish his case—he speculates
that he may need an expert witness, but has not given any indication that
he has sought one out, much less failed in seeking one out. In Moore v.
Mabus, the Fifth Circuit determined that a potential class action involving
AIDS management in a prison environment was “beyond the ability of a
mere prisoner to investigate,” and raised questions that would require
“extensive resources” to answer. 976 F.2d 268, 272 (5th Cir. 1992). By
contrast, Plaintiff’s case involves straightforward factual allegations as to a
single claim of deliberate indifference in violation of the Eighth
Amendment. See (Docket #23 at 1–2). The Court has seen nothing that
would suggest that Plaintiff is incompetent to carry out the litigation. The
Court is mindful that this may change as the proceedings advance towards
trial, and it will certainly reassess an appropriately submitted motion at a
later date. However, in civil cases, unlike criminal cases, indigent litigants

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are not automatically entitled to an attorney, and the Court sees no reason,
at this time, to appoint one.
Plaintiff likely intuits that a lawyer would be helpful in navigating
the legal system; however, Plaintiff’s lack of legal training brings him in line
with practically every other prisoner litigating in this Court. As a litigant in
this Court, Plaintiff is under an obligation to familiarize himself with the
relevant legal standards and procedural rules. The Court has 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. Additionally,
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 v. Price, 900 F.3d 933, 940 (7th Cir. 2018) (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. Thus, there is no reason to think Plaintiff is out of his depth at
present. James, 889 F.3d at 327.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for appointment of counsel
(Docket #29) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that John Does #1-8 be and the same
are hereby DISMISSED without prejudice.

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Dated at Milwaukee, Wisconsin, this 24th day April, 2019.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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