Gruenberg, Darrin v. Casper et al

Filing 44

ORDER that plaintiff Darrin Gruenberg's motions for assistance in recruiting counsel (13-cv-089, dkt. #43; 13-cv-095, dkt. #39; 13-cv-453, dkt. #31) are DENIED. Signed by District Judge William M. Conley on 12/10/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DARRIN GRUENBERG,
Plaintiff,

OPINION & ORDER

v.
13-cv-089-wmc
SGT. CASPER et al.,
Defendants.

DARRIN GRUENBERG,
Plaintiff,

OPINION & ORDER

v.
13-cv-095-wmc
LT. TETZLAFF,
Defendant.

DARRIN GRUENBERG,
Plaintiff,

OPINION & ORDER

v.
13-cv-453-wmc
TRAVIS BITTLEMAN and DAVID
LIPINSKI,
Defendants.
Plaintiff Darrin Gruenberg currently has three cases before this court, all of which
challenge conditions of confinement at Wisconsin Department of Corrections (“DOC”)
institutions. He previously moved for assistance in recruiting pro bono counsel based on his
inability to finance those lawsuits, which the court denied after finding that Gruenberg had
not demonstrated that the difficulty of his cases “factually and legally[] exceeds [his]
capacity as a layperson to coherently present [them] to the judge or jury himself.” Pruitt v.

Mote, 503 F.3d 647, 655 (7th Cir. 2007). The court also found that a shortage of funding
alone was not an appropriate reason to recruit pro bono counsel.
Gruenberg now challenges that decision, arguing that cases cited by the court in
support of its initial opinion have no precedential value.1 Certainly these earlier decisions
not bind this court, were it now persuaded that the reasoning is no longer sound, but
Gruenberg’s objection neither undermines the principle expressed in those cases, nor the
persuasiveness of the reasoning. A lack of financial resources is not a suitable reason in and
of itself to recruit pro bono counsel, particularly since financial resources are not part of the
test the Seventh Circuit employs.
“The decision whether to recruit pro bono counsel is 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.” Pruitt, 503 F.3d at 655. The former inquiry accounts for the nature
of the case and recognizes that some cases, such as those involving complex medical
evidence, are typically more difficult for pro se plaintiffs. Id. at 655-56. The latter takes into
account factors like “the plaintiff’s literacy, communication skills, educational level, and
litigation experience,” as well as “the plaintiff’s intellectual capacity and psychological
history.” Id. at 655.

Specifically, the court previously cited Akright v. Capelle, No. 07-cv-0625-bbc, 2008 WL 4279571,
at *1 (W.D. Wis. Sep. 15, 2008) (“[I]t is this court’s role to appoint counsel when the difficulty of
the case exceeds the particular plaintiff’s capacity to coherently present it to the judge or jury
himself, not when the plaintiff could coherently present the case but would prefer counsel as a
funding mechanism for the litigation.”); Lindell v. Schneiter, No. 06-C-608-C, 2007 WL 5517463, at
*4 (W.D. Wis. Aug. 31, 2007) (denying request to appoint counsel based on claim that plaintiff
lacked the money he needed to fund the suit); Williams v. Berge, No. 02-C-0010-C, 2002 WL
32350026, at *8 (W.D. Wis. Apr. 30, 2002) (“It would be improper to appoint counsel solely for
the purpose of shifting petitioner’s costs to a lawyer.”).
1

2

Neither of those two inquiries weighed in favor of recruiting pro bono counsel in
Gruenberg’s cases.

Indeed, as previously recognized, both weigh rather heavily against

recruitment. See Gruenberg v. Tetzlaff, No. 13-cv-095-wmc, 2014 WL 3735875, at *4 (W.D.
Wis. Jul. 29, 2014).
Gruenberg’s other arguments do not change this outcome. First, he claims that state
and local use-of-force policies are vital to his excessive force claims but almost impossible for
an indigent prisoner to acquire. In support, Gruenberg cites Bracey v. Grondin, 712 F.3d
1012 (7th Cir. 2013), which recognized that “internal prison policies have relevance in
nearly every prison lawsuit alleging the excessive use of force.” Id. at 1018. Unforunately
for Gruenberg, the Bracey decision does not support his request for counsel. Indeed, the
Seventh Circuit actually affirmed the denial of counsel in Bracey, the relevance of the prison
policies notwithstanding: “if the need to access otherwise inaccessible documents requires
recruitment of counsel, recruitment would result in nearly all such cases. Section 1915 does
not impose that burden.” Id.
Gruenberg next argues that the institutional law library has serious problems,
undermining his ability to perform “meaningful” legal research. At the outset, Gruenberg’s
continued ability to cite cases in support of his many motions and cases belies that
representation. In any event, the only specific legal research problem that he identifies is
the fact that the system is old, outdated and slow. (See Mot. Ex. B.) This does not amount
to an inability to litigate his case.
Finally, Gruenberg briefly argues that he requires assistance with locating particular
witnesses, including one who was housed across the hall from him in February of 2012.
Inability to conduct discovery may support the recruitment of counsel.
3

See Santiago v.

Walls, 599 F.3d 749, 765 (7th Cir. 2010) (“Undertaking discovery in this particular
combination of circumstances made the playing field anything but level.”). Here, however,
the problem is not that Gruenberg is incapable of conducting discovery or that prison
officials have stymied his attempts; the problem, at least according to his motion, is that he
has no funds to draft, copy and mail pertinent materials. As already discussed, the court is
not persuaded that this alone justifies recruitment of pro bono counsel. If Gruenberg can
show real need for this kind of information relative to costs, there is even a pro bono fund for
such expenses.

ORDER
IT IS ORDERED that plaintiff Darrin Gruenberg’s motions for assistance in
recruiting counsel (13-cv-089, dkt. #43; 13-cv-095, dkt. #39; 13-cv-453, dkt. #31) are
DENIED.
Entered this 10th day of December, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

4