Zach, Thomas v. Beahm, Brian et al

Filing 45

ORDER denying 16 Plaintiff Thomas W. Zach's motion to dismiss the answer; denying without prejudice 6 Plaintiff's motion for the court's assistance in recruiting him counsel; and granting defendants' 43 motion to stay the schedule. The current schedule and trial date are STRUCK and a new schedule is set as detailed within this order. Signed by District Judge James D. Peterson on 9/28/2018. (jef),(ps)

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

THOMAS W. ZACH,
Plaintiff,
v.
BRIAN BEAHM, TROY HERMANS,
ROBERT SCHENCK, BOB BRYZENSKI, BRENNAN,
LOGAN, TODD JOHNSON, DON RENFRO,
RANDY BERZ, DEIDRE MORGAN, SARA POLK,
CHRISTINE BRATZ, DR. DELAP, and K. LOVELL,

ORDER
16-cv-823-jdp

Defendants.
Plaintiff Thomas W. Zach, a former prisoner at the Thompson Correctional Center,
brings claims that prison staff failed to properly treat his dental pain and then conspired to
give him a false conduct report that resulted in him serving 43 days of segregation and being
transferred away from his family.
Zach has filed a response to defendants’ answer, stating that he disputes their defenses.
Dkt. 16. He asks that I dismiss the answer, and that the case move forward despite the answer.
But plaintiff replies to answers are generally disfavored, and Zach does not identify any
particular part of the answer that he wishes to strike. So I will deny his motion, but he is not
prejudiced. Defendants’ answer is just that: a response to his allegations. It is not a motion to
dismiss in its own right, so it does not serve as an impediment to the lawsuit progressing.
Zach has filed a motion for the court’s assistance in recruiting counsel, Dkt. 6, and
several supplements in which he explains recent developments in his health care. Zach says
that he continues to suffer severe pain from a 2014 car accident and lumbar-fusion surgery in
August 2014 and May 2015. He perhaps faces an additional surgery in November 2018. He

takes narcotic pain medication that effects his concentration, and he cannot drive a car. He
also says that the public library has a two-hour-per-day limit on the use of a computer for word
processing, and that his handwriting his very difficult to read.
Litigants in civil cases do not have a constitutional right to counsel, and I do not have
the authority to appoint counsel to represent a pro se plaintiff in a civil matter. Rather, I can
only assist in recruiting counsel who may be willing to serve voluntarily. See 28 U.S.C.
§ 1915(e)(1); Pruitt v. Mote, 503 F.3d 647, 654, 656 (7th Cir. 2007) (en banc). To prove that
assistance in recruiting counsel is necessary, this court generally requires that a pro se plaintiff:
(1) provide the names and addresses of at least three lawyers who have declined to represent
him in this case; and (2) demonstrate 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 his
demonstrated ability to prosecute it. Id. at 655; see also Young v. Cramer, No. 13-cv-077, 2013
WL 5504480, at *2 (W.D. Wis. Oct. 3, 2013).
Zach has submitted several letters from lawyers who have turned down his requests for
representation, so he meets the first requirement. But I am not yet convinced that he meets
the second. I recruited counsel for Zach in a previous case, No. 13-cv-849-jdp, in the more
immediate aftermath of his car accident. He clearly faces some medical and logistical
impediments, but he has shown an ability to file well-reasoned documents in this case. The
word-processing limits at the library are not a reason to recruit counsel; the handwritten
submissions he has filed thus far are legible. And it is still relatively early in the case so I cannot
tell for certain that the legal issues at play will be particularly complex, or that the tasks he will
need to accomplish to litigate the case will overwhelm his capabilities. If he faces particular

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periods of time in which he will be incapacitated, such as a potential November surgery, he
should inform the court and I will consider extending deadlines to accommodate him.
I will also point out that Zach has two other lawsuits currently pending in this court.
This court cannot recruit counsel for every pro se plaintiff, and it likely will not be able to find
counsel for each of Zach’s cases, even if I thought it was appropriate. The court must decide
for each case “whether this particular prisoner-plaintiff, among many deserving and not-sodeserving others, should be the beneficiary of the limited resources of lawyers willing to respond
to courts’ requests.” McCaa v. Hamilton, 893 F.3d 1027, 1036 (7th Cir. 2018) (Hamilton, J.,
concurring). Because I am not yet convinced that the court should recruit counsel for Zach, I
will deny his motion. But that dismissal will be without prejudice, so that Zach can renew his
motion later. But he will have to explain how his impediments have kept him from completing
the tasks he needs to accomplish.
Defendants have filed a motion to stay the proceedings pending a ruling on Zach’s
motion for counsel, Dkt. 43, and they note that Zach has not cooperated with their discovery
requests, perhaps in anticipation of receiving recruited counsel. I will grant defendants’ motion
and set the following new schedule to give the parties time to conduct discovery and submit
dispositive motions:
Disclosure of expert witnesses: Zach: November 5, 2018; Defendants: December 3,
2018
Dispositive motions deadline: December 3, 2018
Discovery cutoff: April 1, 2019
Final pretrial submissions and disclosures: April 8, 2019
Pretrial submission responses: April 22, 2019
Final pretrial conference: May 1, 2019, at 2:00 p.m.

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Trial: May 6, 2019, at 9:00 a.m.
ORDER
IT IS ORDERED that:
1. Plaintiff Thomas W. Zach’s motion to dismiss the answer, Dkt. 16, is DENIED.
2. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 6, is
DENIED without prejudice.
3. Defendants’ motion to stay the schedule, Dkt. 43, is GRANTED. The current
schedule and trial date are STRUCK and a new schedule is set as detailed above.
Entered September 28, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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