Urquhart v. Roeseler et al

Filing 25

ORDER signed by Judge J P Stadtmueller on 1/15/2019: DENYING without prejudice 23 Plaintiff's Motion to Appoint Counsel and DENYING 24 Plaintiff's Motion for Continuance. (cc: all counsel, via mail to Bryan Urquhart at Fox Lake Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRYAN URQUHART,
Plaintiff,
v.

Case No. 18-CV-879-JPS

CORY ROESELER and ADVANCED
CORRECTIONAL HEALTHCARE,

ORDER

Defendants.

Plaintiff, a prisoner, brings this action pro se pursuant to 42 U.S.C.
§ 1983. This matter comes before the Court on Plaintiff’s motion for
appointment of counsel. (Docket #23). Plaintiff claims he needs counsel
appointed for him because he cannot afford to retain counsel himself and
he has attempted to secure pro bono counsel without success. Id. at 1.
Plaintiff’s motion will be denied. As a civil litigant, Plaintiff has no
automatic right to court-appointed counsel. Luttrell v. Nickel, 129 F.3d 933,
936 (7th Cir. 1997). 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 should seek counsel to represent the 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)).
The Seventh Circuit has emphasized that “[t]he question is not whether a
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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.’” Pruitt, 503 F.3d at 655 (quoting Johnson v. Doughty,
433 F.3d 1001, 1006 (7th Cir. 2006)) (internal quotation omitted). Instead,
“[t]he question is whether the plaintiff appears competent to litigate his
own claims, given their degree of difficulty, and this includes the tasks that
normally attend litigation: evidence gathering, preparing and responding
to motions and other court filings, and trial.” Id.
Here, Plaintiff does not claim to be incompetent, nor does he claim
that the difficulty of this case exceeds his ability to coherently present it.
(Docket #23 at 1). The only grounds for his request are that he cannot afford
a lawyer and none of the fourteen lawyers to whom he has written agreed
to take his case. Id. at 1–2. Without any averments from Plaintiff about his
inability to present this case on his own, and because Plaintiff’s only
substantive submission to date—his complaint—does not itself give the
Court reason to suspect incompetence, the Court is constrained to find that
recruitment of counsel is not justified at this time. Faced with a small pool
of lawyers willing to take on prisoner litigation, the Court cannot appoint
counsel without some good reason that the prisoner is actually incapable of
prosecuting his own case. Plaintiff has not presented such a reason.
Therefore, Plaintiff’s motion to appoint counsel will be denied without
prejudice.
Finally, Plaintiff also filed a motion for a continuance of this case
while he continues to search for a lawyer and to allow him time to learn
more about the law underlying his case. (Docket #24). That motion will also
be denied. Plaintiff is expected to adhere to the Court’s schedule like any
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other litigant. If he wants more time to find a lawyer and to study the law,
he may voluntarily dismiss this action and re-file when he is more
prepared. Of course, the new action would require payment of another
filing fee.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for appointment of counsel
(Docket #23) be and the same is hereby DENIED without prejudice; and
IT IS FURTHER ORDERED that Plaintiff’s motion for a
continuance (Docket #24) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 15th day of January, 2019.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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