Alexander, Michael v. Richter, James et al

Filing 37

ORDER denying 33 Motion for Assistance in Recruiting Counsel; denying 30 Motion for Issuance of Subpoenas. Signed by Magistrate Judge Stephen L. Crocker on 3/19/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL A. ALEXANDER,

Plaintiff,

ORDER

V.

Case No. 15-cv-766-wmc
DR. JAMES RICHTER, et al.

Defendants.

The court has permitted pro se plaintiff Michael Alexander leave to proceed on Eighth
Amendment claims arising from the defendants failure to respond to his requests for eye
examinations, which led to headaches and migraines. Since permitting Alexander leave to
proceed, he has filed a Motion for Issuance of Subpoena (dkt. #30) and a Motion for
Appointment of Counsel (dkt. #33). For the following reasons, I am denying them without
prejudice.

I.

Mo tion for Issuance of Subpoena (dkt. 30)
Alexander initially requested seven blank subpoenas from the Clerk of Court pursuant

to Federal Rule of Civil Procedure 45(a)(3), which requires the clerk to issue subpoenas that
are, "signed but otherwise in blank." The clerk denied his request, instructing him that if he
would like the clerk to comply with his request, he must file a motion with the court that ( 1)
specifies what he is seeking, (2) explains how the subpoena would be relevant to his claims in
this lawsuit and (3) if he is seeking to take depositions, show that he is capable of paying for
the cost of such witnesses' time and mileage in accordance with Fed. R. Civ. P. 45(b)(l).
(Dkt. #29 .) Alexander's motion does not meet that requirement.

As an initial matter, Alexander is correct that Fed. R. Civ. P. 45 does not require a
litigant to submit a motion when requesting the clerk to issue subpoenas. Nonetheless, this
court requires pro se litigants such as Alexander to file the motion described by the clerk. The
court undergoes this process as a general rule for pro se litigants because they often lack
knowledge about the legal requirements of subpoenas. The court's review ensures that the
desired subpoenas will be issued to only individuals and entities that are related to the
lawsuit to avoid the unnecessary cost, inconvenience, and waste of judicial resources that may
arise following issuance of a frivolous or irrelevant subpoena. See Bernegger 1 Banks, No. 08-C1.
156, 2008 WL 4866623, *l (E.D. Wis. Nov. 10, 2008) (denying prose litigant a request for
a blank subpoena, reasoning that court review of such requests are appropriate due to the
possibility that the subpoenas would be used for inappropriate circumstances). While pro se
litigants may be slightly inconvenienced by malting the showing the court requires, the
inconvenience suffered is far outweighed by the potential for significant inconveniences that
would accompany the issuance of improper subpoenas.
Here, Alexander would like seven blank subpoenas. While it appears that he would
like to conduct discovery from individuals with knowledge about the eye care he received at
Columbia Correctional Institution

("Columbia"), he did not provided any specific

information about (1) who he would like to serve with the subpoenas; (2) what information,
documents or testimony he is seeldng to obtain; or (3) whether he has the financial means to
cover the costs associated with any depositions he would like to take. As such, I cannot
assess whether his requested subpoenas will comply with the requirements of Fed. R. Civ. P.
45. Without more information, I will not require the clerk to comply with his request.

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Further, if Alexander is seeking subpoenas to ensure certain witnesses appear at trial,
he has not complied with this court's order on that subject. I issued an order following its
pretrial conference with the parties that included instructions on how to request the Clerk of
Court to issue subpoenas on their behalf for use at trial.

(Preliminary Pretrial Conference

Order, dkt. 27.) In particular, pages 61-62 describe the process Alexander must undertake if
he is interested in having the Clerk of Court issue subpoenas on his behalf to ensure witness
attendance at trial.

(Id. at 60-61.)

The order directs the party seeking the subpoena to

provide the court with certain information, tender an appropriate amount of money when the
witness is served, and submit an affidavit explaining that the witness is refusing to testify
voluntarily, that the party has made arrangements for service through a private party or will
need the assistance of the U.S. Marshall, and that the party is prepared to tender witness
fees . As Alexander has not followed any of these requirements, I am denying his motion, but
is doing so without prejudice to his ability to renew his motion in a manner that meets the
requirements described above.

II.

Motion for Appointment of Counsel (dkt. 33)
Turning to Alexander's Motion for Appointment of Counsel, although civil litigants

like plaintiff 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 has the discretion to recruit a volunteer in an appropriate
case. Alexander attaches letters her wrote to three attorneys requesting representation, and
he states that he has not received a response from any of them. Thus, he has fulfilled the

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threshold requirement of showing that he made reasonable efforts to retain an attorney on
his own. Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992).
Alexander requests that the court recruit counsel for the discovery process because the
doctors that provided him with care no longer work at Columbia.

After reviewing the

materials plaintiff has submitted, however, at this early stage I do not agree that his case
presents the sort of circumstances that would justify recruitment of counsel. Specifically, I
am not persuaded that the complexity of this case exceeds plaintiff's ability to present it to a
jury on his own. See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007). Alexander does not
explain why he is incapable to handling the discovery process on his own, and his filings thus
far indicate that he has the ability to do so.

Indeed , his submissions have been clearly

written, easy to understand and include citations to relevant legal authority. Further, while
he may not have yet followed the instructions regarding subpoenas, this order as well as the
Preliminary Pretrial Conference Order provides specific instructions about how he may
proceed with discovery in compliance with the applicable Federal Rules of Civil Procedure.
(Dkt. #27, at 7-9.) Alexander has not explained any failed attempts he has made to obtain
discovery on his own, so it does not appear that he is unable to use the resources at his
disposal to proceed with discovery alone.
Certainly, pro bono counsel may be able to present Alexander's case more effectively
than he can. But "if that were the test, district judges would be required to recruit counsel for
every indigent litigant." Pruitt, 503 F.3d at 655 (quoting Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006)) (internal quotation marks omitted). This court receives many more
requests for counsel than the small pool of available volunteers can accommodate. Based on
all the facts and circumstances before the court at present, neither the case itself nor

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Alexander's personal circumstances suggests that he is unable to try it on his own.
Accordingly, I will deny the motion for appointment of counsel without prejudice to
Alexander's ability to renew his motion should it become apparent that the demands of this
lawsuit exceed his ability to proceed without the assistance of an attorney.

If Alexander

renews his motion, he should include a detailed explanation of the specific difficulties
Alexander has encountered in trying to litigate this matter.

ORDER
IT IS ORDERED that plaintiff Michael Alexander's Motion for Issuance of Subpoenas
(dkt. #30) and Motion for Appointment of Counsel (dkt. #33) are both DENIED
WITHOUT PREJUDICE.

Entered this 19th day of March, 2017.
BY THE COURT:

Is/
STEPHEN L. CROCKER
Magistrate Judge

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