Urquhart v. Roeseler et al

Filing 32

ORDER signed by Judge J P Stadtmueller on 3/4/2019. 30 Plaintiff's Motion for In Camera Review of Health Records is DENIED; within 10 days, Plaintiff to produce to Defendant ACH signed authorization forms for the release of his health records. 29 Plaintiff's Second Motion to Appoint Counsel is DENIED without prejudice. (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, INC.

ORDER

Defendants.

Plaintiff filed his pro se complaint in this case on June 8, 2018. (Docket
#1). He was permitted to proceed on an Eighth Amendment claim of
deliberate indifference to a serious medical need against Sheboygan County
Sheriff Cory Roeseler, in his official capacity, and Advanced Correctional
Healthcare, Inc. (“ACH”). (Docket #8). Specifically, Plaintiff claims that he
reported symptoms of a heart attack to correctional staff, nurses, and
mental health providers at the Sheboygan County Detention Center while
he was incarcerated there, but was told that he was not having a heart
attack. Id. at 3–4. He claims that he was, in fact, having myocardial
infarctions that went untreated until he was transferred to state prison. Id.
at 4.
Now before the Court are two motions filed by Plaintiff: a motion for
the appointment of counsel (Plaintiff’s second such motion) and a motion
requesting that the Court review Plaintiff’s medical records in camera.
(Docket #29 and #30). Defendant ACH responded to Plaintiff’s motion
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regarding medical records, arguing that Plaintiff’s request should be denied
and asking that the Court compel Plaintiff to sign authorization forms
allowing ACH to obtain his medical records. (Docket #31).
The Court begins with consideration of the motion for in camera
review of Plaintiff’s personal health records. (Docket #30). Defendant ACH
has served on Plaintiff authorizations for the release of his health records,
which include Plaintiff’s psychological, behavioral, dental, and other
medical records From June 2017 to the present. (Docket #31 at 1). ACH
claims to need these records because they are necessary to the evaluation of
Plaintiff’s medical deliberate indifference claim. Id. at 1–2. Plaintiff objects
to the breadth of the records ACH seeks; he believes only medical and
optical records are relevant to this case. Id.; see also (Docket #29). ACH
responds that all of Plaintiff’s medical records are relevant to determine, for
example, whether he had any pre-existing conditions that could mimic the
symptoms of a heart attack. (Docket #31 at 2). Further, to the extent Plaintiff
seeks to recover for any emotional or psychological distress, he has placed
his mental health at issue. Id.
Plaintiff’s motion for in camera review of his health records, (Docket
#30), will be denied. His medical records are highly relevant to his claim in
this case, both in terms of the claim’s merit and the question of damages.
See Walton v. Hendrickson, No. 17-CV-956-BBC, 2018 WL 5313917, at *1 (W.D.
Wis. Oct. 26, 2018). Plaintiff cannot expect to recover for a claim of medical
mistreatment without allowing ACH to review the available information
concerning his medical condition, treatment, and injuries. There is no
reason for the Court to view these records in camera before they are released
to ACH. The Court will, therefore, order that Plaintiff provide signed
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release forms for his health records to ACH for the period from June 2017
to the present. Failure to do so will result in dismissal of this case.
Next, on February 7, 2019, Plaintiff filed his second motion for
appointment of counsel. (Docket #29). His first motion was denied without
prejudice because he had not shown that he is incompetent to prosecute his
case himself. (Docket #23 and #25). In his second motion, Plaintiff explains
that a jailhouse lawyer from whom he received assistance at some point has
been transferred to a different institution. (Docket #29 at 1). He also claims
to have “memory retention issues” that developed after the incident alleged
in his complaint and “other health concerns.” Id. Plaintiff also expresses
frustration that Defendants have requested medical record release
authorization forms for what he believes are irrelevant records. Id. at 1–2.
Finally, Plaintiff complains that lawyers for one of the defendants has not
contacted him and he says he is “lost on procedure.” Id. at 2.
Plaintiff’s motion will be denied. As the Court explained in its order
denying Plaintiff’s first motion for appointed counsel, Plaintiff has no
automatic right to court-appointed counsel in this civil case. James v. Eli, 889
F.3d 320, 326 (7th Cir. 2018). The Court will seek pro bono counsel to
represent a plaintiff if he: (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)); see also 28 U.S.C. § 1915(e)(1).
Plaintiff’s request 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
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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
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 v.
Hamilton, 893 F.3d 1027, 1032 (7th Cir. 2018).
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
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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 finds that Plaintiff has not
presented sufficient evidence or argument showing that he cannot litigate
this matter competently on his own. His claim that he is now without access
to a jailhouse lawyer is not sufficient to warrant appointed counsel. First,
even if this bald assertion is true, it does not appear to the Court that the
quality of Plaintiff’s filings has materially changed since Plaintiff lost his
advisor’s help. Plaintiff does not say exactly which filings were prepared
with and without the help of a jailhouse lawyer (something he should have
done if he expected to convince this Court to solicit a lawyer for him on this
basis), but all of his filings appear to be of similar quality. Second, Plaintiff’s
argument about his jailhouse lawyer is premised solely on Plaintiff’s belief
that someone trained in the law would do a better job than he, which the
Seventh Circuit has rejected as a reason for appointment of counsel. Pruitt,
503 F.3d at 655. Plaintiff’s lack of legal training, while unfortunate, brings
him in line with practically every other prisoner litigating in this Court.
Moreover, it is worth pointing out that unlike a non-prisoner pro se litigant,
who is generally a member of society with common demands upon his time
like work and family obligations, prisoners like Plaintiff have more than
sufficient discretionary time to attend to their litigation tasks and develop
their cases. Perhaps prison conditions are not ideal for that work, but the
time Plaintiff has available to do the work should considerably ease his
burden.

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As a litigant in this Court, Plaintiff is under an obligation to
familiarize himself with the relevant legal standards and procedural rules.
The Court 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. Moreover, Plaintiff’s contention that he is “lost on
procedure” has not, at this point in the case, been proven true. He has filed
several motions seeking relief from the Court, and he responded to
Defendants’ discovery requests with objections. In other words, based on
the information available to the Court, it does not appear that Plaintiff is
struggling to understand or comply with the rules of procedure to a
significant extent as compared to any other prisoner litigant.
Finally, Plaintiff’s claimed lack of ability—relating to his legal novice
and memory problems—is not supported by any proof. That is, Plaintiff has
submitted no records or other 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);
see also 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.
Plaintiff’s arguments concerning his claims, his abilities, and his
circumstances, whether considered separately or as a whole, do not
convince the Court that counsel should be appointed to represent him at
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this time. Thus, the Court will deny Plaintiff’s motion for appointment of
counsel.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for in camera review of his
health records (Docket #30) be and the same is hereby DENIED. Within ten
(10) days from the entry of this Order, Plaintiff shall produce to Defendant
ACH signed authorization forms for the release of his health records from
June 2017 to the present; and
IT IS FURTHER ORDERED that Plaintiff’s second motion for
appointment of counsel (Docket #29) be and the same is hereby DENIED
without prejudice.
Dated at Milwaukee, Wisconsin, this 4th day of March, 2019.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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