Jackson, Lonnie v. Kallas, Kevin et al

Filing 15

ORDER denying 5 Motion for Assistance in Recruiting Counsel; denying 12 Motion for Use of Release Account Funds. Signed by District Judge Barbara B. Crabb on 9/8/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LONNIE JACKSON,
OPINION and ORDER
Plaintiff,
17-cv-350-bbc
v.
DR. KEVIN KALLAS, RYAN HOLZMACHER,
JAMES GREERE, MARY MUSE, CATHY JESS,
DR. GARY ANKARLO, HUGH JOHNSTON and
JOHN & JANE DOES,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - On August 29, 2017, I dismissed the complaint filed by plaintiff Lonnie Jackson, a pro
se prisoner, without prejudice for plaintiff’s failure to comply with Fed. R. Civ. P. 8. Before
the court are plaintiff’s motion for assistance in recruiting counsel, dkt. #5, and motion to use
release account funds to pay for “legal expenses,” copies and postage in this case, dkt. #12. I
am denying both motions for the reasons stated below.

OPINION
A. Motion for Assistance in Recruiting Counsel
There is no right to counsel in civil cases, Olson v. Morgan, 750 F.3d 708, 711 (7th
Cir. 2014), so a party who wants assistance from the court in recruiting counsel must meet
several requirements. Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010). First, she

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must show that she is unable to afford counsel. Because plaintiff is proceeding in forma
pauperis under 28 U.S.C. § 1915, she has met that requirement. Second, she must show
that she made reasonable efforts on her own to find a lawyer to represent her. Plaintiff has
submitted rejection letters that she received from three different lawyers, in accordance with
this court’s requirement. Dkt. #5, exh. # 1. Accordingly, the only question is whether plaintiff
is capable of continuing to represent herself in this case. After reviewing plaintiff’s initial
complaint and motions in this case, I conclude that she is capable of representing herself at this
early stage in the lawsuit.
Although I dismissed plaintiff’s complaint because it did not contain enough information
about the particular conduct allegedly committed by each of the defendants, her filings have
been well-written, easy to understand and directed at the relevant issues in the case. Plaintiff
appears capable of amending her complaint to provide the missing information. Court
assistance in recruiting counsel is appropriate only when the plaintiff demonstrates that hers
is one of those relatively few cases in which it appears from the record that the legal and
factual difficulty of the case exceeds her ability to prosecute it. Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007). The question is not simply whether a lawyer might do a better
job.
The merits of plaintiff’s alleged claims may involve complicated legal and factual
questions, but there is a simpler threshold issue. In particular, because plaintiff is a prisoner,
she is required to exhaust her administrative remedies before filing a lawsuit about her
treatment in prison. 42 U.S.C. § 1997e(a). Although plaintiff does not have to show in her

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complaint that she complied with § 1997e(a), defendants may move to dismiss her claims
at a later date if she failed to use the prison grievance process before filing this case. For this
reason, it is this court’s general policy to defer decisions about counsel until after any issues
about exhaustion of administrative remedies are resolved. Because defendants have the
burden to show that plaintiff did not properly complete the exhaustion process, and issues
about exhaustion generally are simpler than the merits and require little discovery, counsel
often is not needed for that issue.
Although plaintiff says that her claims raise a number of complicated medical and
scientific issues, plaintiff does not need medical expertise to litigate issues related to
exhaustion. Her initial complaint and motions show that she has an understanding of both
the law and court procedure, and she appears to be capable of representing herself at least
for the early stages of the case. Plaintiff also states that she has been getting assistance from
another inmate who has moved to another institution, but she does not explain what
assistance she received or why she can not continue without this particular inmate’s
assistance. It is important that I see how plaintiff does on her own before I can evaluate her
ability to litigate this case.
Accordingly, I am denying plaintiff’s motion for assistance in recruiting counsel. If
plaintiff is granted leave to proceed on any of her claims and those claims survive any motion
by defendants to dismiss her case for failure to exhaust her administrative remedies, or if
defendants do not file such a motion before the deadline for doing so, plaintiff is free to
renew her motion at that time.

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B. Motion to Use of Release Account Funds
The use of inmate release account funds is governed by state law, which provides that
“[r]elease account funds may not be disbursed for any reason until the inmate is released to field
supervision, except to purchase adequate clothing for release and for out-of-state release
transportation.” Wis. Admin. Code § DOC 309.466(2). It is up to prison officials to decide
how to apply the release-account regulations; this federal court generally cannot tell state
officials how to apply state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89
(1984). There is no federal law permitting this court to order prison officials to allow plaintiff
to use her release savings account to pay for costs such as postage and copies that he incurs in
litigating this case. It is only when a prisoner’s general account has insufficient funds to pay an
initial partial filing fee payment that the Prisoner Litigation Reform Act permits this court to
order an institution to access a prisoner’s release account funds to satisfy that payment. E.g.,
Artis v. Meisner, No. 12-cv-589, 2015 WL 5749785, at *5-6 (W.D. Wis. Sept. 30, 2015)
(“Absent some authority requiring the prison to disburse [plaintiff’s] release account funds, the
court declines to interfere in the administration of Wisconsin state prisons . . . .” (emphasis in
original)); Mosby v. Wommack, No. 08-cv-677, 2009 WL 2488011 (W.D. Wis. Aug. 12, 2009)
(“[W]ith the exception of initial partial payments, [federal district courts] do not have the
authority to tell state officials whether and to what extent a prisoner should be able to withdraw
money from his release account.”).

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ORDER
IT IS ORDERED that plaintiff Lonnie Jackson’s motion for assistance in recruiting
counsel, dkt. #5, and motion for use of release account funds, dkt. #12, are DENIED.
Entered this 8th day of September, 2017.
BY THE COURT:
/s/
_____________________
BARBARA B. CRABB
District Judge

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