Ladewig v. Perez et al

Filing 47

ORDER signed by Chief Judge Pamela Pepper on 3/26/2024. 43 Plaintiff's motion to dismiss defendants GRANTED; defendants Royce, Coenen DISMISSED. 35 Defendant Coenen's motion to dismiss DENIED AS MOOT. 30 Plaintiff's motion to appoint counsel DENIED WITHOUT PREJUDICE. (cc: all counsel and mailed to Michael Ladewig at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MICHAEL WILLIAM LADEWIG,
Plaintiff,
v.

Case No. 23-cv-1386-pp

AMANDA PEREZ, DR. PHILLIP WHEATLEY,
BRYAN ROYCE and TYLER COENEN,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO DISMISS DEFENDANTS
ROYCE AND COENEN (DKT. NO. 43), DENYING AS MOOT DEFENDANT
COENEN’S MOTION TO DISMISS (DKT. NO. 35) AND DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 30)
______________________________________________________________________________
Plaintiff Michael William Ladewig is proceeding on Eighth Amendment
claims against officials at Oshkosh Correctional Institution under 42 U.S.C.
§1983. On February 28, 2024, defendant Tyler Coenen moved to dismiss the
complaint against him for failure to state a claim. Dkt. No. 35. The court
ordered the plaintiff to respond to that motion by March 20, 2024. Dkt. No. 42.
On March 8, 2024, the court received a letter from the plaintiff in which he
says that he “will be dropping defendants Bryan Royce and Tyler Coenen from
[this] case.” Dkt. No. 43. The plaintiff says he “has just learned that Bryan
Royce and Tyler Coenen was [sic] not and are not employed by the department
of corrections.” Id. He says that he “feels this would be in his best interest,”
though he acknowledges that he also “feels that Bryan Royce and Tyler Coenen
played a role in his sitution [sic].” Id. The plaintiff clarifies that he “will not be
dropping Dr. Phillip Wheatl[e]y or Amand[a] Perez from [this] case.” Id.
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Under Federal Rule of Civil Procedure 41, a plaintiff may dismiss
defendants from a lawsuit without a court order by filing either “a notice of
dismissal before the opposing party serves either an answer or a motion for
summary judgment; or . . . a stipulation of dismissal signed by all parties who
have appeared.” Fed. R. Civ. P. 41(a)(1)(A). Defendant Royce answered the
complaint on February 13, 2024. Dkt. No. 34. Defendant Coenen did not file an
answer but did file the motion to dismiss. Dkt. No. 35. The plaintiff did not file
a signed stipulation of dismissal from defendants Royce and Coenen. That
means the plaintiff may dismiss those defendants only with a court order. See
Fed. R. Civ. P. 41(a)(2). Rule 41(a)(2) provides that “an action may be dismissed
at the plaintiff’s request only by court order, on terms that the court considers
proper.” Fed. R. Civ. P. 41(a)(2). The rule states that such a dismissal is
without prejudice. Id.
The court finds that dismissal of defendants Royce and Coenen without
prejudice is proper and will grant the plaintiff’s request to dismiss those
defendants. Because the court is dismissing defendant Coenen, the court will
deny as moot his motion to dismiss for failure to state a claim.
Also before the court is the plaintiff’s motion to appoint counsel. Dkt. No.
30. The plaintiff says that his case “is more th[a]n he can handle” because
there are “4 defendants with 3 lawyers,” and he “is a ‘Dummy to the law.’” Id.
The plaintiff says he believes that “his case has merit” and that “the court
believes he has merit.” Id. He says he “does not[] believe he has the resource’s
[sic] available to him” and “believes this is in his best intrest [sic].” Id. The

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plaintiff does not say whether he has attempted to obtain counsel on his own,
but he attached two letters from law firms who declined his request to
represent him. Dkt. No. 30-1 The first letter does not provide a specific reason
other than that the plaintiff is “not a client of the firm.” Id. at 1. It advises the
plaintiff to “immediately contact another attorney to review [his] case.” Id.
(emphasis omitted). The second letter is from a firm located in Tucson, Arizona.
Id. at 2. It notes that the firm is “unable to assist [the plaintiff]” because it
“do[es] not have any attorneys licensed in [his] state.” Id.
In a civil case, the court has the discretion to recruit counsel for
individuals unable to afford counsel. 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, 654–
55 (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 Auth.,

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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 do so, 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.
In particular, the lawyers’ responses may have bearing on the court’s
decision to exercise its discretion because they may shed light on whether the
plaintiff’s attempts to hire counsel were reasonable. Pickett, 930 F.3d at 871.
In deciding whether to recruit counsel, the court should consider the reasons
the lawyer declined representation, including whether the plaintiff was
unwilling (as opposed to unable) to pay a retainer; whether the lawyer lacked
time or capacity to take on new clients; or whether the subject matter of the
case requires a lawyer who specializes in a specific area of law. Id. The court
should also consider how well the plaintiff articulated his case to the
prospective lawyer. Id. Where a plaintiff “conveyed his situation well and
counsel deemed the claim feeble, then it would be inappropriate for a court to
intervene” and recruit counsel. Id. But, where a plaintiff is inarticulate, then a
court “may have a useful role to play in recruiting counsel.” Id.
“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

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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 not satisfied either element for the court to recruit him
counsel. The plaintiff provided only two letters from firms that he contacted on
his own seeking their help with his case. He did not provide the letters he sent
to the firms and does not mention their rejection letters in his motion to
appoint counsel. Neither letter comments on the merits of the plaintiff’s case.
One notes that the firm has no attorneys licensed in Wisconsin who could
represent the plaintiff. (There are many lawyers in Wisconsin; it is not clear
why the plaintiff would seek out a lawyer in another state.) The plaintiff may
have made additional efforts to obtain an attorney on his own, but his motion
does not discuss any. The court finds that the plaintiff has not shown that he

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made a sufficient attempt to obtain an attorney on his own before seeking the
court’s assistance.
Even if the plaintiff had satisfied the first element for recruiting counsel,
he has not satisfied the second element. The reasons the plaintiff gives for
needing counsel’s assistance is that this case “is more than he can handle,”
and he “is a ‘[d]ummy to the law.’” Dkt. No. 30. He has not explained why he
cannot handle the case on his own at this stage. He notes that there are four
defendants with three attorneys, but that no longer is correct. The court is
granting the plaintiff’s motion to dismiss two of those defendants; he is now
proceeding against only two defendants who are represented by the same
attorney. The plaintiff says that he is unfamiliar with the law, but that alone is
not reason to recruit him a volunteer attorney. As the court has explained,
most incarcerated litigants know little to nothing about the law, and likely all
incarcerated litigants would benefit from having counsel’s assistance. But the
resource of volunteer counsel is very limited, so the court must use its
discretion to recruit an attorney only for those most in need of assistance.
See Lockridge v. Larson, No. 23-2423, 2024 WL 774370, at *3 (7th Cir. Feb. 26,
2024) (citing Mejia v. Pfister, 988 F.3d 415, 420 (7th Cir. 2021)). The plaintiff
has not sufficiently explained why he falls into that category.
This case is at a very early stage. The court has screened the complaint,
and the two remaining defendants have filed their responses to the complaint.
Next, the court will issue a scheduling order with additional information and
directions for the parties about how to move forward. As the case progresses,

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the legal and factual issues may become too complex for the plaintiff, his
circumstances may change or he may find himself unable to obtain the
information he believes he needs to prove his claims. If that occurs, it may be
appropriate for the court to recruit counsel to represent the plaintiff. But at
this early stage of the proceedings, it is impossible to tell whether the plaintiff
will need counsel’s assistance to present his case. The court will deny the
plaintiff’s motion to appoint counsel without prejudice. That means he may
renew his request later if he still believes he needs counsel’s assistance to
litigate this case adequately. The court takes no position on the merits of the
plaintiff’s remaining claims against defendants Wheatley and Perez.
The court GRANTS the plaintiff’s motion to dismiss defendants Bryan
Royce and Tyler Coenen. Dkt. No. 43. The court ORDERS that defendants
Royce and Coenen are DISMISSED.
The court DENIES AS MOOT defendant Coenen’s motion to dismiss for
failure to state a claim. Dkt. No. 35.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 30.
Dated in Milwaukee, Wisconsin this 26th day of March, 2024.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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