Zach, Thomas v. Beahm, Brian et al

Filing 22

ORDER that Plaintiff Thomas Zach's 11 , 12 and 15 motions for recruitment of counsel are DENIED without prejudice; Plaintiff's 19 motion for an extension of time to prepare interrogatories is GRANTED. Signed by Magistrate Judge Stephen L. Crocker on 8/01/2014. (nln),(ps)

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

THOMAS W. ZACH,
Plaintiff,

ORDER

v.
13-cv-849-jdp
RANDY LEWIS, et al.,
Defendants.

Plaintiff Thomas Zach, a former inmate with the Wisconsin Department of Corrections,
proceeds in forma pauperis in this case on his claim that defendants Hermans and Lewis violated
his First and Eighth Amendment rights by placing him in a cell with substandard conditions for
filing a grievance, and that John Doe prison officials violated his Eighth Amendment rights by
ignoring plaintiff’s requests for medical treatment. Now before the court are plaintiff’s motions
for “appointment of counsel” and for an extension of time to prepare interrogatories to ascertain
the identities of the Doe defendants. See dkts. 11,12, 15 and 19.
Turning first to plaintiff’s request for an extension of time to prepare interrogatories to
identify the Doe defendants, this request will be granted. Plaintiff has persuasively shown that
he is essentially incapacitated until after his August 11, 2014 neck surgery to correct a bulging
C7 disc, which causes him great pain and limits his physical capabilities. Despite defendants’
objections, there is enough time in the schedule to accommodate plaintiff’s request. Accordingly,
plaintiff may have until September 12, 2014 to complete service of his discovery requests aimed
at identifying the Doe defendants. Plaintiff’s amended complaint naming the Doe defendants
is due October 27, 2014, and the now-identified Doe defendants shall file their answer no later
than November 17, 2014. In addition, the deadline to file a summary judgment motion alleging

failure to exhaust administrative remedies is extended to November 17, 2014. All other
deadlines set forth in the pretrial conference order remain as previously scheduled.
As for plaintiff’s requests for appointment of counsel, plaintiff should be aware that civil
litigants have no constitutional or statutory right to the appointment of counsel. E.g., Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013); Luttrell v. Nickel, 129 F.3d 933,
936 (7th Cir. 1997). The court may, however, exercise its discretion in determining whether to
recruit counsel pro bono to assist an eligible plaintiff who proceeds under the federal in forma
pauperis statute. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent
an indigent civil litigant pro bono publico.”); Luttrell, 129 F.3d at 936. Thus, the court cannot
issue an order appointing counsel to assist plaintiff, it merely has the discretion to recruit a
volunteer in an appropriate case.
In deciding whether to assist plaintiff, I must first find that he has made a reasonable
effort to find a lawyer on his own and has been unsuccessful or that he has been prevented from
making such an effort. Jackson v. County of McLean, 953 F.2d 1070 (7th Cir. 1992). To prove
that he has made a reasonable effort to find a lawyer, plaintiff must give the court the names and
addresses of at least three lawyers that he asked to represent him on the issues on which he has
been allowed to proceed and who turned him down. Plaintiff has met this requirement.
However, plaintiff’s request for assistance in finding an attorney comes too early for the
court to grant it. As a starting point, this court would recruit a lawyer for almost every pro se
plaintiff if lawyers were available to take these cases. But they are not. Most lawyers do not
have the time, the background or the desire to represent pro se plaintiffs in a pro bono capacity,

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and this court cannot make them. So the court only recruits counsel in cases where there is a
demonstrated need, using the appropriate legal test.
The test for determining whether to recruit counsel is two-fold: “[T]he 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.” Pruitt v. Mote, 503
F.3d 647, 655 (7th Cir. 2007). In other words, given the complexity of the case, does plaintiff
appear to be competent to try this case on his own? Santiago v. Walls, 599 F.3d 749, 761 (7th
Cir. 2010) (citing Pruitt, 503 F.3d at 654).
In his motions, plaintiff says he is indigent, has limited knowledge of the law and requires
has the assistance of a lawyer because he will be having neck surgery on August 11, 2014. The
court is sympathetic to plaintiff’s physical pain, but there is no indication that plaintiff will not
return to full health following his surgery or that he will otherwise be unable to prosecute this
case at that time. So far, plaintiff’s filings have been well written and appropriately directed.
Plaintiff has demonstrated his ability to follow court instructions and has been provided with
this court’s pretrial conference order, which contains instructions relating to discovery, filing and
opposing dispositive motions and calling witnesses, which was written for the very purpose of
helping pro se litigants understand how these matters work. Plaintiff has personal knowledge
of the circumstances surrounding the lawsuit and he should already possess or be able to obtain
through discovery relevant documentation he needs to prove his claim.
Although plaintiff is concerned with his ability to represent himself, he has done an
adequate job at this early stage of the proceedings.

Plaintiff may renew his motion if

circumstances change and it becomes clear that this case exceeds his capacity as a layperson to

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litigate it. Plaintiff should bear in mind, however, that this court receives many more requests
for lawyers than the small pool of available volunteer lawyers can serve. Because of this, only
those cases presenting exceptional circumstances can be considered for court assistance in
recruiting a volunteer. Any future requests for court assistance in locating a volunteer must
include specific details showing why he is unable to continue litigating effectively on his own
behalf.

ORDER
It is ORDERED that:
(1)

Plaintiff Thomas Zach’s motions for recruitment of counsel, dkts. 11, 12
and 15, are DENIED without prejudice.

(2)

Plaintiff’s motion for an extension of time to prepare interrogatories, dkt.
19, is GRANTED and the deadlines are extended as set forth in this order.

Entered this 1st day of August, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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