Prude v. Dixon et al

Filing 53

ORDER signed by Magistrate Judge William E Duffin on 10/24/2024. Prude's motion to seal the case (ECF No. 46 ) is DENIED. Prude's motion for leave to file a sur-reply (ECF No. 48 ) is GRANTED. Prude's motion to appoint counsel (ECF No. 49 ) is DENIED without prejudice. (cc: all counsel and mailed to pro se party)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE PRUDE,
Plaintiff,
v.

Case No. 23-CV-1233

CO CANDICE DIXON,
Defendant.
ORDER
On September 4, 2024, plaintiff Terrance Prude, who is incarcerated and
representing himself, filed a motion to seal the case. (ECF No. 46.) On September 16,
2024, Prude filed a motion for leave to file a sur-reply. (ECF No. 48.) And on September
19, 2024, Prude filed a motion to appoint counsel. (ECF No. 49.) This order resolves those
motions.
MOTION TO SEAL (ECF NO. 46)
Prude asks the court to seal the case because he states he is being threatened by
other inmates on the defendant’s order for continuing with this litigation. Because the
record of the case is intended to be public, Civil Local Rule 79(d)(3) requires that a party
demonstrate good cause to seal documents. Prude has not demonstrated good cause.
Sealing the case would not prevent the defendant from viewing the filings because she is
a party. Also, sealing the case would not alleviate Prude’s concern that the other prisoners
mentioned in his case could label him a “snitch” because there is a criminal state law case

concerning the inmate assault at the heart of this case. Because Prude has not
demonstrated good cause to seal the case, his motion is denied.
MOTION FOR LEAVE TO FILE A SUR-REPLY (ECF NO. 48)
Prude filed a motion for leave to file a sur-reply in opposition to the defendant’s
motion for summary judgment. Prude attached his proposed sur-reply to his motion.
(ECF No. 48-1.)
Whether to grant a party leave to file a sur-reply brief is a question within the
court’s discretion. “The decision to permit the filing of a surreply is purely discretionary
and should generally be allowed only for valid reasons, such as when the movant raises
new arguments in a reply brief.” Merax-Camacho v. U.S., 417 F. App’x 558, 559 (7th Cir.
2011) (citing Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3 626, 631 n. 2 (7th Cir.
2010)). “In some instances, allowing a filing of a surreply ‘vouchsafes the aggrieved
party’s right to be heard and provides the court with the information necessary to make
an informed decision.’” Univ. Healthsystem Consortium v. United Health Group, Inc., 68
F. Supp. 3d 917, 922 (N.D. Ill. 2014) (quoting In re Sulfuric Acid Antitrust Litg., 231
F.R.D. 320, 329 (N.D. Ill. 2005)).
Prude asserts that the defendants, in their reply, brought up new arguments. The
court has reviewed the substance of Prude’s sur-reply and does not find that it unduly
prejudices the defendants. Also, the defendants had an opportunity to oppose Prude’s
motion for leave to file a sur-reply and did not. As such, the court will accept Prude’s surreply and consider it where appropriate when deciding the defendants’ motion for
summary judgment on exhaustion grounds.
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MOTION TO APPOINT COUNSEL (ECF NO. 49)
In a civil case, the court has discretion to recruit a lawyer for individuals who
cannot afford to hire one. Navejar v. Iyiola, 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, 654-55 (7th Cir. 2007)). And, given the scarcity of
pro bono counsel resources, the court may also consider the merits of a plaintiff’s claim
and what is at stake. Watts v. Kidman, No. 21-1055, 2022 WL 3038877, at *6 (7th Cir.
Aug. 2, 2022). Prude attached evidence that he made a reasonable effort to hire an
attorney on his own. (ECF Nos. 49-1; 49-2; 52-1.) He has satisfied the first prong.
“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
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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 490-491. 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.
Prude states that he needs a lawyer to help him when the case goes to trial.
Currently, there are cross-motions for summary judgment that are fully briefed and
awaiting the court’s resolution. At this time, there is nothing for the parties to do. Prude’s
motion to appoint counsel is denied. If Prude’s case survives summary judgment, he may
refile his motion to appoint counsel.
IT IS THEREFORE ORDERED that Prude’s motion to seal the case (ECF No.
46) is DENIED.
IT IS FURTHER ORDERED that Prude’s motion for leave to file a sur-reply
(ECF No. 48) is GRANTED.
IT IS FURTHER ORDERED that Prude’s motion to appoint counsel (ECF No.
49) is DENIED without prejudice.
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Dated in Milwaukee, Wisconsin this 24th day of October, 2024.

BY THE COURT

WILLIAM E. DUFFIN
United States Magistrate Judge

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