Hanson, Ty v. Rothschild P.D. et al

Filing 32

ORDER denying 23 Motion for Assistance in Recruiting Counsel ; denying 24 Motion for Entry of Default. Signed by District Judge James D. Peterson on 11/16/2018. (jef),(ps)

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

TY A. HANSON,
Plaintiff,
v.
KEVIN OTROWSKI, JOHN DOE MARATHON
COUNTY JAIL STAFF, JOHN DOE LINCOLN
COUNTY JAIL STAFF, JOHN DOE ROTHSCHILD
POLICE DEPARTMENT OFFICERS, SCOTT PARKS,
and JEFF JAEGER,

ORDER
17-cv-756-jdp

Defendants.
Plaintiff Ty A. Hanson, appearing pro se, is an inmate at Stanley Correctional
Institution. He brings constitutional excessive-force and medical care claims, as well as statelaw negligence claims against defendant Kevin Ostrowski and “John Doe” defendants from the
Rothschild Police Department, Marathon County Jail, and Lincoln County Jail, for failing to
properly treat his injuries when he was taken into custody following a car accident.
Hanson filed a motion for entry of default against Otrowski and the Doe Rothschild
police officers. Dkt. 24. Because it seemed likely that Otrowski had not been properly served,
I withheld ruling on Hanson’s motion and gave the United States Marshals Service a chance
to either re-serve Otrowski under Federal Rule of Civil Procedure 4 or Wisconsin law, or
supplement the service returns with an explanation of how service was in fact properly
accomplished. Dkt. 26.
The Marshals Service submitted a second executed return, Dkt. 27, that appears to
suffer from the same defect as the first one: an individual named “Michele Dehnel, Clerical
Assistant” was served, presumably at the Rothschild Police Department, where defendant

Otrowski is employed. Dkt. 27. But this time around, the marshal noted, “Talked with the
Rothschild chief of police. Advised them to have their city attorney contact immediately
reference this case.” Id. Shortly thereafter, counsel appeared on behalf of Otrowski and the
Rothschild Doe defendants and filed an answer.
However, the answer includes an affirmative defense that Hanson failed to properly
serve Otrowski and the Does. Dkt. 29, at 3. Just as I previously told Hanson that the court
disfavors default judgment, it also disfavors dismissal based on an error by the Marshals in
accomplishing service. I will deny Hanson’s motion for entry of default. If Otrowski actually
intends to contest service, he should immediately file a motion with supporting evidence
asserting this defense, or I will consider the issue waived.
Hanson has also filed a motion for appointment of counsel. Dkt. 8; Dkt. 23. But
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 show that it is appropriate for the court to recruit counsel, a plaintiff must first show
that he has made reasonable efforts to locate an attorney on his own. See Jackson v. Cnty. of
McLean, 953 F.2d 1070, 1072–73 (7th Cir. 1992) (“the district judge must first determine if
the indigent has made reasonable efforts to retain counsel and was unsuccessful or that the
indigent was effectively precluded from making such efforts”). To meet this threshold
requirement, this court generally requires plaintiffs to submit correspondence from at least
three attorneys to whom they have written and who have refused to take the case. Hanson has
met this requirement.

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But the court will seek to recruit counsel for a pro se litigant only when the litigant
demonstrates that his case is one of those relatively few in which it appears from the record
that the legal and factual difficulty of the case exceeds his ability to prosecute it. Pruitt, 503
F.3d at 654–55. The court must decide for each case “whether this particular prisoner-plaintiff,
among many deserving and not-so-deserving 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).
Hanson says that he has very limited legal knowledge, but that is a very common
impediment for pro se filers in this court that in itself is not a reason to recruit counsel. After
he filed his motion, the court held a preliminary pretrial conference and issued an order
detailing many of the procedures he will be expected to follow in litigating the case, Dkt. 31.
He should refer to that order as the case progresses.
So I will deny Hanson’s motion. As the lawsuit moves forward, if he continues to believe
that he is unable to litigate the lawsuit himself, then he may renew his motion, but he will have
to explain what specific litigation tasks he cannot perform himself.

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ORDER
IT IS ORDERED that:
1. Plaintiff Ty A. Hanson’s motion for entry of default, Dkt. 24, is DENIED.
2. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 8;
Dkt. 23, is DENIED without prejudice.
Entered November 16, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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