King v. Johnson et al

Filing 39

ORDER signed by Chief Judge Pamela Pepper on 3/12/2025. Clerk of Court to enter default against defendant Aida Roman-Guillonta under FRCP 55(a). Plaintiff may file motion for default judgment by end of day 5/23/2025. 30 Plaintiff's motion to appoint counsel DENIED WITHOUT PREJUDICE. (cc: all counsel and mailed to Kyle King, W1288 Marietta Ave., Ixonia, WI 53036-with civil legal services flyer)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KYLE JAMES KING,
Plaintiff,
v.

Case No. 24-cv-284-pp

MICHAEL FERGUSON, et al.,
Defendants.
______________________________________________________________________________
ORDER DIRECTING CLERK TO ENTER DEFENDANT ROMAN-GUILLONTA’S
DEFAULT, SETTING DEADLINE FOR PLAINTIFF TO MOVE FOR DEFAULT
JUDGMENT AND DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION
TO APPOINT COUNSEL (DKT. NO. 30)
______________________________________________________________________________
On January 14, 2025, the court ordered defendant Aida RomanGuillonta to “answer or otherwise respond to the second amended complaint
. . . by the end of the day on February 14, 2025.” Dkt. No. 38 at 3. In that
order, the court explained that the U.S. Marshals Service had served the
complaint personally on Roman-Guillonta on September 4, 2024, but that she
had not responded. Id. at 1-2 (citing Dkt. No. 28). The court explained that if
the court did not “receive from defendant Roman-Guillonta an answer, a
motion or a request for an extension of time to file an answer or a motion, the
clerk will enter default against her, and the plaintiff may move for default
judgment against defendant Roman-Guillonta.” Id.
The February 14, 2025 deadline has passed, and the court has not heard
from defendant Roman-Guillonta. The court sent the January 14, 2025 order to
defendant Roman-Guillonta at Amergis in Wauwatosa, which is the address that

1

the Wisconsin Department of Justice provided in its Amended Acceptance of
Service declining to accept service on behalf of defendant Roman-Guillonta. Dkt.
No. 26. No attorney has appeared on Roman-Guillonta’s behalf, and she has
neither filed an answer to the second amended complaint nor requested
additional time to do so. The court will enforce its previous order and direct the
Cerk of Court to enter defendant Roman-Guillonta’s default under Federal Rule
of Civil Procedure 55(a). The plaintiff may move for default judgment against
defendant Roman-Guillonta under Federal Rule of Civil Procedure 55(b) by the
deadline the court will set below. If the plaintiff does not file a motion in time for
the court to receive it that deadline, the court will dismiss defendant RomanGuillonta and this case will proceed only against the other defendants.
The plaintiff also moves for appointment of counsel. Dkt. No. 30. The
plaintiff says that his case is complex and that the defendants are represented
by “at least 3 trained attorneys in different locations.” Id. at 1. He says that
counsel for defendant Dmitry B. Chester has prematurely served him with
interrogatories requesting his medical records from as early as August 2014.
Id. at 2. The plaintiff says that he is not sure whether he should release this
information to the defendants. Id. at 3. He reiterates that this “is a complex
case resulting in multiple injuries with several defendants represented by
multiple lawyers.” Id. The plaintiff says he wrote letters to three attorneys
asking them to represent him, but that none of them responded. Id. at 3–4. He
asserts that based on his incarceration status and because of the complexity of
his case, he needs an attorney to help him litigate it effectively. Id. at 4.

2

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.,
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.
“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

3

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 Pruitt inquiry. He lists three attorneys
whom he contacted about representing him in this case, and he included the
contact information where he sent those letters. He says he did not receive a
response from any of the attorneys. The court finds that the plaintiff’s efforts
show that he attempted to obtain a lawyer on his own before asking for the
court’s assistance.
But the plaintiff has not satisfied the second Pruitt inquiry. The plaintiff
says that this case is too complex for him to litigate on his own because it

4

involves multiple defendants who are represented by at least three attorneys.
This fact alone is not sufficient reason for the court to recruit counsel for the
plaintiff. The court is aware of the difficulty incarcerated persons face litigating
cases on their own. But as the court has explained, the Constitution does not
entitle the plaintiff to an attorney to represent him in this civil case, and there
are not enough attorneys willing and able to represent the self-represented
plaintiffs who want them.
Since the plaintiff filed his motion to appoint counsel, he has been
released from incarceration and has provided a new address in Ixonia,
Wisconsin. Dkt. No. 35. That means that the plaintiff has access through local
libraries and community centers to online legal resources such as
https://scholar.google.com/ and https://www.govinfo.gov/app/collection/
uscourts, which permit searches of federal case law. He also may visit law
libraries like the one at the Milwaukee federal courthouse, which are staffed by
librarians who can assist the plaintiff in finding relevant materials. The plaintiff
also may seek limited assistance from the Eastern District of Wisconsin Bar
Association’s Federal Legal Assistance Program. He can start the process by
completing the online form at https://edwba.org/form.php?form_id=15. The
court also will enclose a flyer that identifies local free and low-cost legal aid
providers that the plaintiff may contact. These available legal services provide
resources to help the plaintiff present his case.
This case is at a very early stage. The court has screened the complaint,
but not all the defendants have appeared and responded to the complaint. The

5

plaintiff says that defendant Chester has sent him interrogatories, but as he
correctly points out, the court repeatedly has ordered that the parties must not
begin discovery until the court has issued a scheduling order. See Dkt. No. 11
at 11; Dkt. No. 24 at 2. The court has given the plaintiff a deadline to file a
motion for default judgment against defendant Roman-Guillonta; if he does
not, the court will dismiss her from this case. After that issue is resolved, the
court will issue a scheduling order with additional information and directions
for the parties to move forward with this litigation. The court cannot give the
plaintiff legal advice regarding how he should respond to discovery requests
from the defendants. But the court reiterates that no party should begin
discovery until the court has issued the scheduling order providing deadlines
for discovery and dispositive motions.
As this case progresses, the court will be flexible in giving the plaintiff
reasonable additional time if he believes he needs it to litigate the lawsuit. But
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, and if
providing the plaintiff with additional time does not help, it may be appropriate
for the court to recruit counsel to represent the plaintiff. At this early stage of
the proceedings, the court cannot tell whether the plaintiff will need the
assistance of counsel to present his case. The court will deny the plaintiff’s
motion to appoint counsel without prejudice. That means that he may renew

6

his request later if he still believes he needs counsel’s assistance to litigate this
case adequately.
The court ORDERS that the Clerk of Court must enter defendant Aida
Roman-Guillonta’s default under Federal Rule of Civil Procedure 55(a).
The court ORDERS that the plaintiff may file a motion seeking default
judgment against defendant Aida Roman-Guillonta under Federal Rule of Civil
Procedure 55(b) by the end of the day on May 23, 2023. If the plaintiff does
not file a motion for default judgment against defendant Roman-Guillonta in
time for the court to receive it by the end of the day on May 23, 2023, the court
will dismiss defendant Roman-Guillonta, and this case will proceed only
against the other defendants.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 30.
Dated in Milwaukee, Wisconsin this 12th day of March, 2025.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

7