Thacker, Devon et al v. All sureties which indemnify Wis. against defendants' misconduct et al

Filing 43

ORDER denying 27 Motion for Assistance in Recruiting Counsel; granting 40 Motion for Clarification. Just this once, the clerk of court is directed to send Thacker an updated copy of the docket sheet at no cost to Thacker. Signed by Magistrate Judge Stephen L. Crocker on 5/23/2019. (jef/cc: provided docket sheet to plaintiff),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DEVON THACKER,
Plaintiff,
v.

OPINION AND ORDER
17-cv-624-wmc

JOLINDA WATERMAN, DR. BURTON COX,
DR. MURPHY, J. LABELLE, SANDRA
MCARDLE, and DR. BURKE,
Defendants.
Pro se plaintiff Devon Thacker, an inmate at the Wisconsin Secure Program Facility
(“WSPF”), is proceeding in this lawsuit on claims that defendants, all WSPF employees,
violated his rights under the Eighth Amendment and Wisconsin law by denying him
medical care for an arm injury and also committed medical malpractice under state law.
Thacker has two motions under advisement: (1) a motion for clarification (dkt. 40), which
I am granting, and (2) a motion for assistance recruiting counsel (dkt. 27), which I am
denying without prejudice.

I.

Motion for Clarification (dkt. 40)
Thacker asks the court to acknowledge that he has not withdrawn his Motion for

Appointment of Counsel (dkt. 27), and that this filing is being considered by the court.
He explains that when he initially submitted the motion requesting appointment of
counsel, he mistakenly did not indicate that he had served all defendants (see dkt. 23), and
so he submitted a replacement motion (dkt. 27). When he submitted other supplemental
materials, Thacker claims that WSPF staff “misconstrued” his submissions, in particular

expressing concern that WSPF employee Catharine Broadbent mistitled one of his filings.
He adds that Broadbent also has refused to provide him copies of all Notices of Electronic
Filing in this lawsuit.
I will grant this motion, but only to clarify that the court has taken document 27
and its related submissions under advisement. I will rule on that motion below. However,
I want to make clear that there is no indication that Broadbent has been mishandling
Thacker’s filings. Clerical staff here at the court labeled Thacker’s filings for purposes of
the electronic docket. They did this to clarify that Thacker no longer wanted the court to
consider the motion appearing in the docket as document 23. Broadbent had nothing to
do with this.
As for Thacker’s complaints about not receiving the notices from Broadbent,
Thacker is free to request an updated copy of the docket from the clerk’s office at the court.
I will direct the clerk of court to include an updated copy of the docket of this case along
with this order with this caution: the Clerk of Court might be willing to provide copies of
filings and the docket to pro se litigants every now and then, but not all the time. Thacker
should not expect the court to keep his records for him on an ongoing basis.

II.

Motion for Appointment of Counsel
This court does not “appoint” pro bono attorneys for litigants in Thacker’s

circumstances because the court lacks the authority to do so. Indeed, a pro se litigant does
not have a right to counsel in a civil case, Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.
2014). A district court has discretion to assist pro se litigants in finding a lawyer to

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represent them. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007). A party who asks for
assistance from the court in recruiting counsel must meet certain requirements. Santiago v.
Walls, 599 F.3d 749, 760–61 (7th Cir. 2010).
As a starting point, a plaintiff must make a reasonable effort to find a lawyer on his
own that was unsuccessful (or he was prevented from even making such an
effort). Jackson v. County of McLean, 953 F.2d 1070 (7th Cir. 1992). To prove that he has
made reasonable efforts to find a lawyer, a plaintiff must submit letters from at least three
lawyers whom he asked to represent him in this case and who turned him down. Thacker
has submitted letters from four attorneys declining to represent him pro bono, so he has
satisfied this first requirement.
Next, the court considers whether the legal and factual difficulties of the lawsuit
exceed the plaintiff’s ability to litigate it. Up to this point, Thacker’s filings demonstrate
that he is not in over his head. I say up to this point, but this case has only just begun.
The court has only recently granted Thacker leave to proceed, defendants filed
their answer on May 14, 2019, and this matter has not been set for a preliminary pretrial
conference. Even so, earlier today, Thacker filed a typed motion under Rule 12(f) to strike
affirmative defenses, see dkt. 42, which demonstrates Thacker’s above-average
understanding of and facility for civil litigation.
I am not persuaded by Thacker’s argument that he needs a lawyer because he will
need to seek and obtain medical records and expert testimony. Nearly all pro se litigants
in this court are untrained in the law and many of them raise claims about their medical
care. There is no categorical rule that all prisoners challenging the adequacy of their

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medical care are entitled to counsel. See Williams v. Swenson, 747 F. App’x 432, 434 (7th
Cir. 2019) (affirming district court’s denial of request for counsel in medical care case);
Dobbey v. Carter, 734 F. App’x 362, 364 (7th Cir. 2018) (same); Romanelli v. Suliene, 615
F.3d 847, 853 (7th Cir. 2010) (same).

The law governing Thacker’s claims is well

established and was explained to him in the screening order. At this point, it is not clear
whether this case will turn on questions requiring medical expertise. See Redman v. Doehling,
751 F. App’x 900, 905 (7th Cir. 2018) (“Redman could litigate his claims himself because
they turned on historical facts as opposed to medical evidence”). Indeed, the screening
order acknowledged that certain facts related to each defendant’s involvement will need to
be fleshed out to determine their culpability.

Accordingly, I am not persuaded that

recruitment of counsel is necessary due to the nature of his claims alone.
Next, and as already noted, Thacker advocates well for himself. His filings in this
lawsuit suggest that he is capable of litigating this case without the help of an attorney, at
least at this stage. While Thacker explains the limitations imposed by his fibromyalgia,
including memory and thinking problems, his filings are readable and reflect a clear
understanding of the relevant legal standards. Indeed, Thacker has shown that he can
communicate clearly with the court, and that he’s diligently keeping track of how this case
is proceeding. This suggests that Thacker will be able to communicate effectively with
defense counsel to engage in discovery.
Finally, at the soon-to-be-scheduled telephonic preliminary pretrial conference, I
will explain the logistics of how this case will proceed, after which I will issue a written

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order that provides extensive additional information about how a pro se plaintiff should
litigate a civil lawsuit in this court.
Accordingly, I am denying Thacker’s motion at this time, without prejudice.
Thacker may renew his motion later in this case if he believes that the legal and factual
difficulty of this case have exceeded his ability to litigate it alone.

ORDER
IT IS ORDERED that:
1) Plaintiff Devon Thacker’s motion for assistance in recruiting counsel (dkt. 27)
is DENIED without prejudice.
2) Plaintiff’s motion for clarification (dkt. 40) is GRANTED as provided above.
3) Just this once, the clerk of court is directed to send Thacker an updated copy of
the docket sheet at no cost to Thacker.

Entered this 23rd day of May, 2019.
BY THE COURT:
/s/
_______________________
STEPHEN L. CROCKER
Magistrate Judge

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