Freer v. Lincoln et al

Filing 14

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 3/27/2024. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the b alance of the filing fee as specified. 11 Plaintiff's Motion to Appoint Counsel is DENIED without prejudice. 1 Plaintiff's Complaint FAILS to state a claim. By 4/17/2024, Plaintiff to FILE an amended complaint as provided. Failure t o timely do so will result in dismissal of this case and issuance of a "strike." See Order. (cc: all counsel, via mail to James G Freer with prisoner amended complaint form and prisoner/pro se guides and to Warden (order only) at Redgranite Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES G. FREER,
Plaintiff,

v.

Case No. 23-CV-1720-JPS

C.O. LINCOLN, C.O. BARRIBEAU,
and JOHN DOES,

ORDER

Defendants.

Plaintiff James G. Freer, an inmate confined at Redgranite
Correctional Institution (“RGCI”), filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that the defendants violated his federal rights. ECF No. 1.
This Order resolves Plaintiff’s motion for leave to proceed without
prepaying the filing fee, motion to appoint counsel, and screens his
complaint.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On January 8, 2024, the Court ordered Plaintiff to pay an initial
partial filing fee of $0.29. ECF No. 6. Following an extension, Plaintiff paid
that fee on February 26, 2024. The Court will grant Plaintiff’s motion for

leave to proceed without prepaying the filing fee. ECF No. 2. He must pay
the remainder of the filing fee over time in the manner explained at the end
of this Order.
2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint if the prisoner raises claims that are legally “frivolous
or malicious,” that fail to state a claim upon which relief may be granted, or
that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b).
In determining whether the complaint states a claim, the Court
applies the same standard that applies to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017)
(citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th
Cir. 2012)). A complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The complaint must contain enough facts, accepted as true, to “state a claim
for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows
a court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived him of a right secured by the Constitution or
the laws of the United States and that whoever deprived him of this right
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was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).
2.2

Plaintiff’s Allegations

Plaintiff names C.O. Lincoln, C.O. Barribeau, and John Does as
defendants. ECF No. 1 at 1. Plaintiff indicates that these defendants were
correctional officers on first and second shift. Id. at 2. Plaintiff references his
inmate complaint and directs the Court to the attached exhibits. Id.
2.3

Analysis

Title II of the Americans with Disabilities Act (“ADA”) “prohibits a
‘public entity’ from discriminating against a ‘qualified individual with a
disability’ on account of that disability” and applies to state prisons. Pa.
Dep’t of Corr. v. Yeskey, 524 U.S. 206, 206 (1998) (quoting 42 U.S.C. § 12132).
To establish an ADA claim, “the plaintiff must prove that he is a ‘qualified
individual with a disability,’ that he was denied ‘the benefits of the services,
programs, or activities of a public entity’ or otherwise subjected to
discrimination by such an entity, and that the denial or discrimination was
‘by reason of’ his disability.’” Love v. Westville Corr. Ctr., 103 F.3d 558, 560
(7th Cir. 1996) (quoting 42 U.S.C. § 12132). Analysis under the
Rehabilitation Act (“RA”), 29 U.S.C. § 794, is essentially the same except
that the RA includes an additional element requiring that the entity denying
access receive federal funds. See Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 671–
72 (7th Cir. 2012); Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (ADA
and RA standards are “functionally identical”).
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“[B]ecause the ADA addresses its rules to employers, places of
public accommodation, and other organizations, not to the employees or
managers of these organizations,” a plaintiff may not sue defendants in
their individual capacities – the proper defendant is the organization, or the
individual in his or her official capacity. Walker v. Snyder, 213 F.3d 344, 346
(7th Cir. 2000) (overruled on other grounds). Like the ADA, the RA has been
interpreted to preclude suits against officials in their individual capacities.
See Boston v. Dart, 2015 WL 4638044, at *2 (N.D. Ill. Aug. 4, 2015) (citing
Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 624, 644 (7th Cir.
2015)). DOC is a proper defendant to these claims, as that is the “public
entity” that administers the programs and benefits to which he seeks access
and is the entity that would be responsible for providing him with a
reasonable accommodation. See 42 U.S.C. §§ 12131(1)(B) & 12132; 29 U.S.C.
§ 794; Wis. Stat. § 301.04 (providing that DOC may sue and be sued).
The term “qualified individual with a disability” means,
an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, the
removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services
or the participation in programs or activities provided by a
public entity.
42 U.S.C. §12131. The term “disability” means “a physical or mental
impairment that substantially limits one or more major life activities.” 42
U.S.C. § 12102(1)(A). Major life activities include, but are not limited to
“caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading,

concentrating,

thinking,

communicating,

42 U.S.C. § 12102(2)(A).
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and

working.”

Here, Plaintiff appears to be bringing an ADA claim given the
exhibits attached to his complaint. See ECF No. 1-1. However, there are no
factual allegations in the complaint itself; the complaint simply references
the attached inmate complaint exhibit. ECF No. 1 at 2. While the Court
construes pro se complaints liberally and it understands that prisoners have
limited resources, Plaintiff must nonetheless do his best to comply with the
Federal Rules of Civil Procedure. A complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Further, A party must “must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances.” Fed. R. Civ. P. 10(b). As such, the Court will
provide Plaintiff the opportunity to amend his complaint on or before April
17, 2024 to cure the deficiencies identified in this Order.
When writing his amended complaint, Plaintiff should provide the
Court with enough facts in the complaint to answer the following questions:
(1) Who violated his constitutional rights?; (2) What did each person do to
violate his rights?; (3) Where did each person violate his rights?; and
(4) When did each person violate his rights? Plaintiff’s amended complaint
does not need to be long or contain legal language or citations to statutes or
cases, but it does need to provide the Court and each Defendant with notice
of what each Defendant allegedly did or did not do to violate his rights.
The Court is enclosing a copy of its amended complaint form and
instructions. Plaintiff must list all of the defendants in the caption of his
amended complaint. He should use the spaces on pages two and three to
allege the key facts that give rise to the claims he wishes to bring, and to
describe which defendants he believes committed the violations that relate

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to each claim. If the space is not enough, Plaintiff may use up to five
additional sheets of paper.
Plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th
Cir. 1998). In Duda, the appellate court emphasized that in such instances,
the “prior pleading is in effect withdrawn as to all matters not restated in
the amended pleading.” Id. at 1057 (citation omitted). If the amended
complaint is received, it will become the operative complaint in this action,
and the Court will screen it in accordance with 28 U.S.C. § 1915A.
3.

MOTION TO APPOINT COUNSEL
Finally, the Court will deny Plaintiff’s motion to appoint counsel. As

a civil litigant, Plaintiff has “neither a constitutional nor statutory right to a
court-appointed attorney.” James v. Eli, 889 F.3d 320, 326 (7th Cir. 2018).
However, under 28 U.S.C. § 1915(e)(1), a “court may request an attorney to
represent any person unable to afford counsel.” A court should seek
counsel to represent a 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)). Whether to appoint
counsel in a particular case is left to a court’s discretion. James, 889 F.3d at
326; McCaa v. Hamilton, 893 F.3d 1027, 1031 (7th Cir. 2018).
While framed in terms of a plaintiff’s capacity to litigate, this
discretion must also be informed by the realities of recruiting counsel in this
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District. When a court recruits a lawyer to represent a pro se party, the
lawyer takes the case pro bono. Unlike a lawyer appointed to represent a
criminal defendant during her prosecution, who is paid by the government
for the work, an attorney who takes a prisoner’s civil case pro bono has no
promise of compensation.
It is difficult to convince local lawyers to take such cases. Unlike
other districts in this Circuit, see, e.g., L.R. 83.35 (N.D. Ill.), the Eastern
District of Wisconsin does not employ an involuntary appointment system
for lawyers admitted to practice in the District. Instead, the District relies
on the willingness of lawyers to sign up for the Pro Bono Attorney Panel
and, once there, accept appointments as needed. See Pro Bono Program,
available at: http://www.wied.uscourts.gov/pro-bono-program.
The District is grateful to the lawyers who participate in the Pro Bono
Program, but there are never enough volunteers, and those who do
volunteer rarely take more than one or two cases a year. This is
understandable, as many are already busy attending to fee-paying clients.
Although the Pro Bono Program does provide for payment of certain
litigation expenses, it does not directly compensate a lawyer for his or her
time. Participants may seek attorney’s fees when permitted by statute, such
as in successful § 1983 cases, but they will otherwise go unpaid. The small
pool of attorneys available to this District for pro bono appointments stands
in stark contrast to that of the Court of Appeals, which regularly recruits
counsel from across the nation to represent pro se plaintiffs on appeal. See,
e.g., James, 889 F.3d at 323 (appointing counsel from Washington, D.C. to
represent the pro se appellant); McCaa, 893 F.3d at 1029 (same).
Additionally, it must be remembered that, when a court determines
that counsel recruitment is appropriate, it can take months to locate a
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willing lawyer. This delay works to the detriment of all parties and
contravenes Congress’s instruction in Federal Rule of Civil Procedure 1 that
district courts must endeavor to secure the “just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1. Thus, looming large over
each request for counsel are a court’s ever-more-limited time and resources.
With these considerations in mind, the Court returns to the question
presented: whether counsel can and should be recruited to represent
Plaintiff at this stage in this case. First, a court asks whether the litigant has
made “reasonable” efforts to obtain her own representation. Pruitt, 503 F.3d
at 655; Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). It is a
question not often litigated; many district court judges either overlook
arguably unreasonable efforts at obtaining counsel, or they impose
eminently practical requirements such as the submission of evidence
demonstrating that the prisoner has tried and failed to secure
representation from several lawyers. See, e.g., Kyle v. Feather, No. 09-cv-90bbc, 2009 WL 2474627, at *1 (W.D. Wis. Aug. 11, 2009).
The first element of Pruitt is fairly easy to satisfy, but it is not
toothless, and it is not a mere technical condition of submitting a certain
number of rejection letters. If it was, then a Wisconsin prisoner litigating a
§ 1983 action could submit rejection letters from ten randomly selected
criminal defense lawyers from Nevada and call his work complete. This
cannot be. The purpose of the reasonable-efforts requirement is to ensure
that if a court and private lawyers must expend scarce resources to provide
counsel for a prisoner, he has at least made a good-faith effort to avoid those
costs by getting a lawyer himself. To fulfill this duty, a pro se prisoner
should reach out to lawyers whose areas of practice suggest that they might
consider taking his case. If he learns that some of the lawyers he has
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contacted do not, he should reach out to others before he concludes that no
one will help him.
Plaintiff states that he contacted attorneys to represent him in this
matter. ECF No. 11. Plaintiff does not, however, provide any evidence that
he did contact the listed attorneys. Id. Even if, however, the Court found
these minimal efforts sufficient to satisfy the first Pruitt prong, Plaintiff’s
request would still fail on the second prong.
Plaintiff’s request must also succeed on the second Pruitt question:
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
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 a court need not address every
concern raised in a motion for appointment of counsel, it must address
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“those that bear directly” on the individual’s capacity to litigate his case.
McCaa, 893 F.3d at 1032.
The balancing contemplated in the second Pruitt step must be done
against the backdrop 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
would place untenable burdens on court resources. It would also turn the
discretion of § 1915(e)(2) on its head, making appointment of counsel the
rule rather than the exception.
Several pronouncements from the Court of Appeals appear to be in
tension with this principle. First, the Seventh Circuit notes that “complexity
increases and competence decreases as a case proceeds to the advanced
phases of litigation.” James, 889 F.3d at 327. It deems the “[a]dvanced
phases” to include those from discovery onward. Id.; McCaa, 893 F.3d at
1032. But nearly every prisoner case proceeds to discovery, as the district
court applies exceedingly lenient review during initial screening.
Second, the Seventh Circuit instructs that district courts should
evaluate a prisoner’s competency irrespective of the involvement of a
“jailhouse lawyer.” McCaa, 893 F.3d at 1033; Walker v. Price, No. 17-1345,
2018 WL 3967298, at *5 (7th Cir. Aug. 20, 2018). How courts should do this
is not clear. A court rarely knows whether a filing was prepared by the
plaintiff or someone helping him. And if a court does know that the plaintiff
is receiving help, how can it assess his ability to litigate without knowing
which portions of the filings are his work, and which come from the
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jailhouse lawyer? In Walker, the court determined that the inmate’s work
product decreased in quality after his jailhouse lawyer was transferred to
another prison. 2018 WL 3967298, at *6. Yet a savvy prisoner, looking to
secure counsel for himself, could do this on purpose, crafting his filings to
downplay his own litigation capabilities. A court would have no way to
assess whether the inmate is sandbagging it.
Finally, the Court of Appeals indicates that claims involving the state
of mind of the defendant, such as those involving deliberate indifference,
are particularly complex. James, 889 F.3d at 327–28; McCaa, 893 F.3d at 1032.
Yet a government official’s culpable mental state is the foundation for most
constitutional claims. Indeed, it is often the defining characteristic that sets
§ 1983 claims apart from their state-law tort analogues. Deliberate
indifference is essential to nearly all claims of cruel and unusual
punishment, excessive force, mistreatment of medical needs, and First
Amendment and due process violations. See Kingsley v. Henderson, 135 S. Ct.
2466, 2473 (2015); County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998);
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hambright v. Kemper, 705 F. App’x
461, 462 (7th Cir. 2017); Milton v. Slota, 697 F. App’x 462, 464 (7th Cir. 2017)
(“[N]egligently inflicted harm does not amount to a constitutional
violation.”) (emphasis in original). Taken together, these claims comprise
the vast majority of prisoner litigation in this District. If state-of-mind issues
are generally beyond the ability of most pro se litigants to prove, then a
court likely would need to appoint counsel in nearly every prisoner case.
This is plainly impossible.
The guiding rule has always been that appointment of counsel is the
exception rather than the rule in pro se prisoner litigation. Yet a confluence
of all-too-common circumstances—discovery, jailhouse lawyers, and
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claims concerning state of mind—militate in favor of the appointment of
counsel. As the list of reasons to appoint counsel grows, the reasons not to
do so shrink. This District’s resources have not kept pace.
Against this backdrop, the Court finds that Plaintiff has not
presented sufficient evidence and argument showing that he cannot litigate
or try this matter competently on his own. In his motion, Plaintiff does not
indicate any specific reason why he needs representation. ECF No. 11.
It is true, as Plaintiff intuits, that a lawyer would be helpful in
navigating the legal system; trained attorneys are of course better
positioned to successfully litigate cases. But Plaintiff’s lack of legal training
brings him in line with practically every other prisoner or former prisoner
litigating in this Court. Further, the Court will assist 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 scheduling order.
Thus, ignorance of the law or court procedure is generally not a qualifying
reason for appointment of counsel. Plaintiff has not demonstrated that his
case is exceptional to require counsel. The Court will therefore deny
Plaintiff’s motion, without prejudice, and if the case proceeds past
screening, the Court will reconsider any renewed motion for counsel at a
later time.
4.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without

prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint
counsel, ECF No. 11, be and the same is hereby DENIED without
prejudice;
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IT IS FURTHER ORDERED that the complaint fails to state a claim;
IT IS FURTHER ORDERED that Plaintiff may file an amended
complaint that complies with the instructions in this Order on or before
April 17, 2024. If Plaintiff files an amended complaint by the deadline, the
Court will screen the amended complaint under 28 U.S.C. § 1915A. If
Plaintiff does not file an amended complaint by the deadline, the Court will
dismiss this case based on his failure to state a claim in his original
complaint and will issue him a “strike” under 28 U.S.C. § 1915(g);
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank prisoner amended complaint form and a copy of the guides entitled
“Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro
Se Litigants’ Common Questions,” along with this Order;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $349.71 balance
of the filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’s trust account and forwarding payments to the Clerk
of Court each time the amount in the account exceeds $10 in accordance
with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this case. If Plaintiff is transferred to
another county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.

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Dated at Milwaukee, Wisconsin, this 27th day of March, 2024.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge
Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, will be required to submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply may result in the dismissal of this action for failure to
prosecute. In addition, the parties must notify the Clerk of Court of any
change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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