Tonn, Dennis v. Dittmann, Michael et al
Filing
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ORDER denying 28 Motion for Reconsideration; denying without prejudice 29 Motion for Assistance in Recruiting Counsel. Signed by District Judge James D. Peterson on 8/26/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DENNIS TONN,
ORDER
Plaintiff,
v.
14-cv-481-jdp
MICHAEL MEISNER, DAVID MELBY,
DONALD MORGAN, and MARY LEISER,
Defendants.
I granted pro se prisoner Dennis Tonn leave to proceed on a Fourteenth Amendment
due process claim against defendants David Melby and Donald Morgan, for failing to have
sufficient evidence to support the calculation of restitution that they ordered plaintiff to pay
after he was found possessing medication that was not prescribed to him. Dkt. 24. I also
granted plaintiff leave to proceed against defendants Michael Meisner, the former warden of
plaintiff’s prison, and Mary Leiser, a complaint examiner at plaintiff’s prison. Id. But I denied
plaintiff leave to proceed against four other defendants because he did not allege that they
were personally involved in any deprivation of plaintiff’s constitutional rights—a requirement
for liability under 42 U.S.C. § 1983. Id. Plaintiff has now moved for reconsideration of my
decision to dismiss these four defendants from this case. Dkt. 28.
Plaintiff’s motion for reconsideration explains that the dismissed defendants “were
part of the exhaustion required in order to exhaust the administrative remedies and [they]
should have corrected it.” Id. at 2. I understand plaintiff to contend that the dismissed
defendants were personally involved in the events of this case because they reviewed
plaintiff’s inmate complaint (or decisions dismissing that complaint). But “[r]uling against a
prisoner on an administrative complaint does not cause or contribute to the violation. A
guard who stands and watches while another guard beats a prisoner violates the Constitution;
a guard who rejects an administrative complaint about a completed act of misconduct does
not.” George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). Plaintiff cannot proceed against
the four dismissed defendants, and so I will deny his motion for reconsideration.
Plaintiff has also moved the court for assistance recruiting counsel. Dkt. 29. Litigants
in civil cases do not have a constitutional right to a lawyer, but the court has discretion to
determine whether assistance in the recruitment of counsel is appropriate in a particular case.
Pruitt v. Mote, 503 F.3d 647, 654, 656 (7th Cir. 2007). To show that assistance in recruiting
counsel is necessary, plaintiff must demonstrate that: (1) he has made a reasonable effort to
obtain counsel; and (2) that his is one of those relatively few cases in which it appears from
the record that the legal and factual difficulty of the case exceeds plaintiff’s demonstrated
ability to prosecute it. Id. at 655.
As to the first requirement, plaintiff states that he has sent letters to three attorneys,
but that he has not heard back from any of them. Dkt. 29, at 2. This court typically requires
plaintiffs who seek assistance recruiting counsel to prove that at least three attorneys have
declined to represent them by filing copies of rejection letters from these attorneys. Plaintiff
has not submitted any materials from which I can verify that he has been unsuccessful in
finding his own representation.
Even if plaintiff satisfies the first requirement, however, he has not demonstrated that
this case will present difficulties that are beyond his abilities. At this point, plaintiff’s
submissions indicate that he can effectively organize and present his arguments. And this
case involves a relatively straightforward, fact-based question: whether the defendants lacked
evidence to support their decision to impose restitution. I will therefore deny plaintiff’s
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motion for assistance recruiting counsel. But this denial will be without prejudice to plaintiff
renewing his motion at a later stage should it become clear that he is unable to litigate this
action himself.
ORDER
IT IS ORDERED that:
1. Plaintiff Dennis Tonn’s motion for reconsideration, Dkt. 28, is DENIED.
2. Plaintiff’s motion for assistance recruiting counsel, Dkt. 29, is DENIED without
prejudice.
Entered August 26, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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