Sims v. Gernetzke et al

Filing 28

ORDER signed by Chief Judge Pamela Pepper on 5/6/2022 DENYING without prejudice 18 plaintiff's motion to appoint counsel. (cc: all counsel and mailed to Mario Sims at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MARIO MARTINE SIMS,
Plaintiff,
v.

Case No. 21-cv-210-pp

CARLA GERNETZKE,
and DANIEL ROEBER,
Defendants.
______________________________________________________________________________
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO
APPOINT COUNSEL (DKT. NO. 18)
______________________________________________________________________________
Plaintiff Mario Martine Sims, confined at the Green Bay Correctional
Institution and representing himself, filed a civil rights complaint alleging
violations of his constitutional rights. Dkt. No. 1. The court screened the
complaint and allowed him to proceed on an excessive force claim under the
Eighth Amendment against Sergeants Gernetzke and Roeber based on
allegations that after the plaintiff put a note in his mouth and started chewing
it, the defendants grabbed his neck and choked him which resulted in a
“fractured and scratched neck.” Dkt. No. 7 at 3. The plaintiff since has filed a
motion asking the court to appoint counsel to represent him. Dkt. No. 18.
The plaintiff states that his “intelligent quotient” and reading scores show
that he lacks the ability to litigate this case on his own. Dkt. No. 18 at 1. The
plaintiff filed test results from a recent “TABE 12 ALL” test that tested his
proficiency in reading, math and language. Dkt. No. 20-1 at 5. The results
indicate that the plaintiff has “partial proficiency” in the Reading subcategories of Reading Foundational Skills, Key Ideas and Details and

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Integration of Knowledge and Ideas, and that he has “proficiency” in the
Reading sub-category of Craft and Structure. Id. The results also show that the
plaintiff has “partial proficiency” in the Language sub-categories of Conventions
of Standard English, Vocabulary Acquisition and Use, and Test Types and
Purposes. Id.
The plaintiff asserts that due to COVID-19 precautions, he has limited
access to the law library and that he does not have the mental capacity to
understand how to use it. Dkt. No. 18 at 1. He says that he wrote to three
lawyers to try to find one on his own. Id. at 2. He also states that the jailhouse
lawyer who prepared his motion to appoint counsel can no longer help him
because of his current caseload. Id.
In a civil case, the court has discretion to recruit a lawyer for individuals
who cannot afford to hire one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir.
2013); 28 U.S.C. §1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d
864, 866-67 (7th Cir. 2013). “[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)).
In exercising its discretion, the court must consider two things: “(1) ‘has
the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so,’ and (2) ‘given the difficulty of the case,
does the plaintiff appear competent to litigate it himself?’” Eagan v. Dempsey,
987 F.3d 667, 682 (7th Cir. 2021) (quoting Pruitt v. Mote, 503 F.3d 647, 65455 (7th Cir. 2007)). To satisfy the first prong, the court must determine that a
plaintiff made a good faith effort to hire counsel. Pickett v. Chi. Transit
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Authority, 930 F.3d 869, 871 (7th Cir. 2019). “This is a mandatory, threshold
inquiry that must be determined before moving to the second inquiry.” Eagan,
987 F.3d at 682. To demonstrate he satisfied the first prong, the plaintiff must
show he contacted at least three lawyers and provide the court with (1) the
lawyers’ names; (2) their addresses; (3) how and when the plaintiff attempted to
contact the lawyer; and (4) the lawyers’ responses.
“The second inquiry requires consideration of both the factual and legal
complexity of the plaintiff’s claims and the competence of the plaintiff to litigate
those claims.” Eagan, 987 F.3d at 682. When considering the second prong,
the court “must examine the difficulty of litigating specific claims and the
plaintiff’s individual competence to litigate those claims without counsel.”
Pennewell v. Parish, 923 F.3d 486, 490 (7th Cir. 2019). The court looks at
“whether the difficulty of the case, factually, legally, and practically, exceeds
the litigant’s capacity as a layperson to coherently litigate the case.” Id. This
includes “all tasks that normally attend litigation,” such as “evidence gathering,
preparing and responding to court filings and motions, navigating discovery,
and putting on a trial.” Id. at 490-91. The court “must consider the plaintiff’s
literacy, communication skills, education level, litigation experience,
intellectual capacity, psychological history, physical limitations and any other
characteristics that may limit the plaintiff’s ability to litigate the case.” Id. at
491. In situations where the plaintiff files his motion in the early stages of the
case, the court may determine that it is “impossible to tell whether [the
plaintiff] could represent himself adequately.” Pickett, 930 F.3d at 871.
The plaintiff has satisfied the first requirement by making a reasonable
attempt to find a lawyer on his own. But the court has allowed the plaintiff to
proceed on a straightforward excessive force claim against two defendants. The
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complaint describes in detail the incident giving rise to his excessive force
claim. The test results the plaintiff provided to the court may demonstrate that
he is not a great reader, but they do not show that he can’t read or write. It
sounds like the plaintiff has had a fellow inmate helping him up to this point,
and the court understands that the plaintiff may be worried about whether
he—a person without any special knowledge of the law and who has some
trouble with reading—will be able to figure out what to do. The court believes
that he can.
This case is in the “discovery” phase. “Discovery” is another way of
saying that the parties to a lawsuit can ask each other for information about
the allegations in the lawsuit by sending each other written questions (called
interrogatories) and requests for documents. A person does not need to be
trained in the law, or to do legal research, to ask or truthfully answer questions
or to ask for documents. The court believes that the plaintiff can ask the
defendants questions about his case and ask them for the documents he
thinks will help prove his claims.
After the discovery phase comes the “dispositive motion” phase.
Dispositive motions typically are motions for summary judgment. In a
summary judgment motion a party will ask the court to dismiss the case
because that party believes that there are no genuine disputes of material fact
and the law favors that party. If the defendants in this case file a motion for
summary judgment, the plaintiff does not need to be trained in the law to
respond to the motion, nor does he need to contact experts. Whether a court
grants or denies summary judgment usually depends on whether there are one
or more genuine disputes of material fact. The plaintiff knows what happened
to him. The court is familiar with the law and, if there is a summary judgment
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motion, will not need the plaintiff to explain the legal basis of his claims. It will
need the plaintiff to explain which of the defendant’s facts the plaintiff disputes
and why. Even if the defendant is not as good at reading and writing as he
would like to be, the court believes that he can tell the court which of the
defendants’ facts he disagrees with and explain why.
Finally, if the plaintiff needs more time to conduct discovery or respond
to a dispositive motion, he should file a motion for extension of time before the
deadline that he wants the court to extend, explaining why he needs more time.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 18.
Dated in Milwaukee, Wisconsin this 6th day of May, 2022.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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