Flowers v. Coats et al
Filing
11
SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 1/28/2025. 2 Plaintiff's Motion to Appoint Counsel is GRANTED. 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the balance of the filing fee as specified. Defendants Tonia Moon and Michael Gierach are DISMISSED from this action. Plaintiff may PROCEED on: an Eighth Amendment deliberate indifference to serious medical needs claim against Defendants Coats, Lane, Perez, and Hansen; a First Amendment retaliation claim against Defendant Coats; and a state law negligence claim against Defendants Coats, Lane, Perez, and Hansen. A copy of Plaintiff 's Complaint and this Order to be electronically SENT to Wis DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. Defendants to FILE any exhaustion-related challenges in a motion for summary judgment within 45 days. Motions to dismiss must comply with specified requirements. See Order. (cc: all counsel, via mail to Sean A Flowers with prisoner/pro se guides and to Warden (order only) at Redgranite Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SEAN A. FLOWERS,
Plaintiff,
v.
Case No. 24-CV-1103-JPS
ROBERT COATS, SGT. LANE, C.O.
PEREZ, LYLA HANSEN, TONIA
MOON, and WARDEN MICHAEL
GIERACH,
ORDER
Defendants.
Plaintiff Sean A. Flowers, an inmate confined at Redgranite
Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983
alleging that Defendants violated his constitutional rights by failing to
provide him adequate medical treatment. This Order screens his complaint
and resolves his motion for leave to proceed without prepaying the filing
fee and motion to appoint counsel.
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 September 20, 2024, the Court ordered Plaintiff to pay an initial
partial filing fee of $2.22. Plaintiff paid that fee on November 1, 2024. The
Court will grant Plaintiff’s motion for leave to proceed without prepaying
the filing fee. ECF No. 3. 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).
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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
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 brings this case against Defendants Robert Coats (“Coats”),
Sgt. Lane (“Lane”), C.O. Perez (“Perez”), Lyla Hansen (“Hansen”), Tonia
Moon (“Moon”), and Warden Michael Gierach (“Gierach”). ECF No. 1 at 1–
2. On March 1, 2024, Plaintiff received surgery for his ACL and meniscus.
Id. at 3. Plaintiff was issued a wheelchair, crutches, and a knee brace to use
for at least six weeks. Id. at 3–4. Plaintiff’s dressings from the surgery were
not to come off until March 5, 2024 to ensure proper healing. Id. at 4. On
March 4, 2024, Plaintiff left the unit in his wheelchair to get his legal mail.
Id. Plaintiff’s wheelchair did not fit in the room, so he parked it outside and
close to the door. Id. Plaintiff used his crutches to get from his bed to the
wheelchair. Id. When Plaintiff returned, he did not see his crutches; another
inmate told Plaintiff that Coates confiscated the crutches for no reason. Id.
At approximately 8:50 a.m. that day, Plaintiff attempted to open his
door without his crutches. Id. Plaintiff fell because he did not have his
crutches for support. Id. Plaintiff heard a pop when he fell and experienced
pain. Id. Inmates and staff eventually helped him. Id. Plaintiff’s knee brace
was damaged during this incident. Id. Plaintiff was taken to HSU, but the
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nurse said she could not look at Plaintiff’s knee because the doctor’s orders
required the dressings and bandages to be kept on until March 5, 2024. Id.
The following day, Plaintiff’s dressings and bandages were cut off and he
had a follow-up appointment for his fall. Id. at 4–5. On March 8, 2024,
Plaintiff had another follow-up visit where he told the nurse he was
experiencing extreme pain since the fall. Id. at 5.
On March 11, 2024, Plaintiff when to the library. Upon his return,
Plaintiff discovered Coats had again taken his crutches for no reason. Id.
Coats placed the crutches at the back of the room and knew there was no
safe way for Plaintiff to reach them on his own. Id. As a result, Plaintiff fell
again. Id. Plaintiff hit his head on the ground, chipped his tooth, hurt his
knee, and experienced pain all over. Id. A medical emergency was called,
and Plaintiff was taken to the HSU for assessment. Id.
On March 12, 2024, Plaintiff went to the HSU for follow-up
treatment, and he received additional pain medication. Id. Plaintiff went to
the library and when he returned at approximately 10:55 a.m., his crutches
were gone again. Id. Plaintiff asked Lane and Perez for his crutches but was
denied. Id. at 6. Plaintiff went to the sergeant’s station to ask Coats for the
crutches because he did not feel safe getting out of his wheelchair without
them. Id. Coats denied his request. Id. Plaintiff asked for a psychologist and
a lieutenant but was again denied. Id. Plaintiff was forced to go to his room
without crutches for the count. Id. Without his crutches, Plaintiff fell when
attempting to stand. Id. Perez saw Plaintiff on the ground and told him to
get up even though Plaintiff was clearly in need of medical assistance. Id.
Lane refused to give Plaintiff his crutches. Hansen told Plaintiff to get up
because he could move.
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Plaintiff was eventually helped up. Plaintiff was crying out in pain
but his pleas for help were disregarded. Id. at 7. Plaintiff asked Hansen to
elevate his leg, in accordance with the doctor and physical therapist’s
orders, but she refused. Id. After approximately thirty minutes of sitting in
pain, he was finally taken for treatment. Id. Hansen forced Plaintiff to get
out of the chair on his own even though he was asking for assistance. Id.
Plaintiff was then told he would not get any pain medication. Id. No nurse
or doctor checked on Plaintiff for hours while he suffered excruciating pain.
Id.
2.3
Analysis
First, the Court finds that Plaintiff may proceed against Coats, Lane,
Perez, and Hansen on an Eighth Amendment deliberate indifference claim
for their indifference to Plaintiff’s serious medical need. The Eighth
Amendment secures an inmate’s right to medical care. Prison officials
violate this right when they “display deliberate indifference to serious
medical needs of prisoners.” Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005)
(internal quotation omitted). Deliberate indifference claims contain both an
objective and a subjective component: the inmate “must first establish that
his medical condition is objectively, ‘sufficiently serious,’; and second, that
prison officials acted with a ‘sufficiently culpable state of mind,’ i.e., that
they both knew of and disregarded an excessive risk to inmate health.”
Lewis v. McLean, 864 F.3d 556, 562–63 (7th Cir. 2017) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal citations omitted)). “A delay in
treating non-life-threatening but painful conditions may constitute
deliberate indifference if the delay exacerbated the injury or unnecessarily
prolonged an inmate’s pain.” Arnett v. Webster, 658 F.3d 742, 753 (7th Cir.
2011) (citing McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)). The
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length of delay that is tolerable “‘depends on the seriousness of the
condition and the ease of providing treatment.’” Id. (quoting McGowan, 612
F.3d at 640).
At the screening stage, the Court finds that Plaintiff’s allegations are
sufficient to proceed against Coats, Lane, Perez, and Hansen. Plaintiff
alleges that Coats, Lane, and Perez denied him access to his medically
necessary crutches, which caused him significant pain and further injury.
Plaintiff further alleges that Hansen failed to properly treat him after his fall
and caused him excruciating pain for hours. As such, Plaintiff may proceed
against Coats, Lane, Perez, and Hansen on an Eighth Amendment
deliberate indifference claim for their indifference to Plaintiff’s serious
medical needs.
The Court will not, however, allow plaintiff to proceed against the
remaining defendants. Generally, the denial of a grievance “by persons
who otherwise did not cause or participate in the underlying conduct states
no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); see also George
v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). “If there is ‘no personal
involvement by the warden [in an inmate's medical care] outside the
grievance process,’ that is insufficient to state a claim against the warden.”
Neely v. Randle, No. 12 C 2231, 2013 WL 3321451, at *3 (N.D. Ill. June 13,
2013) (quoting Gevas v. Mitchell, 492 Fed. Appx. 654, 660 (7th Cir. 2012)). As
far as the Court can tell, Plaintiff names Moon, and Gierach only for their
involvement in denying his inmate complaints. As such, the Court will
dismiss these defendants for the failure to state a claim against them.
Second, the Court finds that Plaintiff may proceed on a First
Amendment retaliation claim against Coats. To prevail on a retaliation
claim, Plaintiff must ultimately show that: “(1) he engaged in activity
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protected by the First Amendment; (2) he suffered a deprivation likely to
deter such activity; and (3) the First Amendment activity was at least a
motivating factor in the decision to impose the deprivation.” Hawkins v.
Mitchell, 756 F.3d 983, 996 (7th Cir. 2014).
Here, Plaintiff alleges that Coats retaliated against him for filing an
inmate complaint. It is well established that a prisoner’s ability to file
grievances is protected by the First Amendment. See Hughes v. Scott, 816
F.3d 955, 956 (7th Cir. 2016). As for the second element, Plaintiff alleges
suffering deprivations—being denied his medically necessary crutches—
that, we can infer, would likely dissuade a person of ordinary firmness from
exercising further First Amendment activity. See Gomez v. Randle, 680 F.3d
859, 866 (7th Cir. 2012). At the pleadings stage, the Court finds these
allegations are sufficient to proceed on a First Amendment retaliation claim
against Coats.
Finally, the Court will allow Plaintiff to proceed on a state law
negligence claim against Coats, Lane, Perez, and Hansen. To sustain a claim
for negligence, Plaintiff must allege “(1) a breach of (2) a duty owed (3) that
results in (4) an injury or injuries, or damages.” Paul v. Skemp, 625 N.W.2d
860, 865 (Wis. 2001). Plaintiff alleges that these defendants were negligent
for failing to provide his medically necessary crutches and in treating his
injuries from the resulting fall. At this early stage, the Court will exercise its
supplemental jurisdiction under 28 U.S.C. § 1367(a) and will allow Plaintiff
to proceed on a state law claim of negligence against Coats, Lane, Perez,
and Hansen.
3.
MOTION TO APPOINT COUNSEL
For the reasons explained below, the Court will grant Plaintiff’s
motion to appoint counsel. As a civil litigant, Plaintiff has “neither a
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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
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 his prosecution, who is paid by the government
for his 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
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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).
Against the thin ranks of ready and willing counsel rises the
overwhelming tide of pro se prisoner litigation in this District.1 In 2010,
approximately 300 civil actions were filed by prisoner litigants. More than
half sought habeas corpus relief, while the remainder were § 1983 actions
alleging violations of constitutional rights. Since then, the number of habeas
corpus cases has remained largely steady at around 130 per year, while the
volume of § 1983 lawsuits has skyrocketed. About 499 § 1983 actions were
filed in 2022, and another 571 in 2023—each significantly more than the
entirety of the District’s civil prisoner filings from years earlier. In 2024,
Although non-prisoner pro se litigants may also be considered for
the appointment of counsel under § 1915, the Court does not address that
set of pro se litigants here for a few reasons. First, the volume of nonprisoner pro se litigation is miniscule compared to that brought by
prisoners. Second, prisoners are much more likely to request the
appointment of counsel. Paradoxically, prisoners are usually far better
equipped to litigate than non-prisoners, as prisoners have access to
electronic filing, institution law libraries, and fellow prisoners who offer
services as “jailhouse lawyers.” Yet, learning a little of the legal system
means that prisoners know they can request the appointment of pro bono
counsel, which they do with regularity.
1
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§ 1983 actions numbered 582. All told, well over a third of the District’s new
case filings are submitted by unrepresented inmates. On its best day, this
District has the resources to realistically consider appointment of counsel
in only a tiny fraction of these cases.
Finally, it must be remembered that, when a court determines that
counsel recruitment is appropriate, it can take months to locate a 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 his 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
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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
contacted do not, he should reach out to others before he concludes that no
one will help him.
Plaintiff provides evidence that he has attempted to secure counsel
in this matter. He includes copies of the rejection letters from law firms that
he received in response to his request. ECF No. 2-1. The Court is therefore
satisfied that Plaintiff has met the first Pruitt factor to attempt to secure
counsel on his own.
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.
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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
“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
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“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
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
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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
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 presented
sufficient evidence and arguments showing that he cannot litigate or try
this matter competently on his own. To begin, as Plaintiff intuits, a lawyer
would be helpful in navigating the legal system; however, Plaintiff’s lack of
legal training brings him in line with practically every other prisoner
litigating in this Court. Further, the Court assists all pro se 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.
However, Plaintiff raises many meritorious arguments that tip the
balance of the scale. Plaintiff suffers from anxiety, depression, and memory
loss. ECF No. 2. Plaintiff provides that he has only been able to present his
case thus far with the assistance of another prisoner to prepare all
documents thus far. Id. Plaintiff’s case also presents complicated legal
issues, including but not limited to the likely need for an expert to testify
regarding the appropriateness of the care Plaintiff received for his knee
injury. Taken together, the Court finds that the difficulty of the case exceeds
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Plaintiff’s capacity to coherently present it. As such, the Court will
accordingly grant Plaintiff’s motion to appoint counsel.
The Court will attempt to recruit counsel to litigate the case on
Plaintiff’s behalf, bearing in mind that there is no guarantee that the Court
will be able to secure counsel for him. Defendants must still file a responsive
pleading to the complaint and must also file any exhaustion summary
judgment motions as directed below. Absent these two filings, however, the
Court will not issue a scheduling order until counsel is secured.
4.
CONCLUSION
In light of the foregoing, the Court finds that Plaintiff may proceed
on the following claims pursuant to 28 U.S.C. § 1915A(b):
Claim One: Eighth Amendment claim against Coats, Lane, Perez,
and Hansen for their deliberate indifference to Plaintiff’s serious medical
needs.
Claim Two: First Amendment retaliation claim against Coats.
Claim Three: State law negligence claim against Coats, Lane, Perez,
and Hansen.
The Court has enclosed with this Order guides prepared by court
staff to address common questions that arise in cases filed by prisoners.
These guides are entitled, “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions.” They
contain information that Plaintiff may find useful in prosecuting his case.
Defendants should take note that, within forty-five (45) days of
service of this Order, they are to file a summary judgment motion that raises
all exhaustion-related challenges. The Court will issue a scheduling order
after counsel is secured that embodies other relevant deadlines.
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Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee, ECF No. 3, be and the same is hereby GRANTED;
IT IS ORDERED that Plaintiff’s motion to appoint counsel, ECF No.
2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants Moon and Gierach be
and the same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that under an informal service
agreement between the Wisconsin Department of Justice and this Court, a
copy of the complaint and this Order have been electronically transmitted
to the Wisconsin Department of Justice for service on Defendants Coats,
Lane, Perez, and Hansen;
IT IS FURTHER ORDERED that under the informal service
agreement, Defendants shall file a responsive pleading to the amended
complaint within sixty (60) days;
IT IS FURTHER ORDERED that Defendants raise any exhaustionrelated challenges by filing a motion for summary judgment within fortyfive (45) days of service;
IT IS FURTHER ORDERED if Defendants contemplate a motion to
dismiss, the parties must meet and confer before the motion is filed.
Defendants should take care to explain the reasons why they intend to
move to dismiss the complaint, and Plaintiff should strongly consider filing
an amended complaint. The Court expects this exercise in efficiency will
obviate the need to file most motions to dismiss. Indeed, when the Court
grants a motion to dismiss, it typically grants leave to amend unless it is
“certain from the face of the complaint that any amendment would be futile
or otherwise unwarranted.” Harris v. Meisner, No. 20-2650, 2021 WL
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5563942, at *2 (7th Cir. Nov. 29, 2021) (quoting Runnion ex rel. Runnion v.
Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 524 (7th Cir. 2015)).
Therefore, it is in both parties’ interest to discuss the matter prior to motion
submissions. Briefs in support of, or opposition to, motions to dismiss
should cite no more than ten (10) cases per claim. No string citations will be
accepted. If Defendants file a motion to dismiss, Plaintiff is hereby warned
that he must file a response, in accordance with Civil Local Rule 7 (E.D.
Wis.), or he may be deemed to have waived any argument against dismissal
and face dismissal of this matter with prejudice;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $347.78 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;
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined; and
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
copy of the guides entitled “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions,” along
with this Order.
Page 17 of 18
Dated at Milwaukee, Wisconsin, this 28th day of January, 2025.
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.
Page 18 of 18
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