United States District Court, W.D. Wisconsin
D. PETERSON District Judge
screening pro se plaintiff Pedro Garcia’s proposed
complaint, I concluded that he had appeared to state claims
against defendants Officer Flaky and Sergeant Field for
violating his Fourteenth Amendment rights. Dkt. 9. But I
directed plaintiff to file an amended complaint to address
deficiencies that I identified for other claims that he had
alleged against different defendants. Id.
has filed three responses to my order. In his first response,
plaintiff “ask[s] that we continue the suite [sic]
against Flakey and Sgt Fields and the rest be considerd [sic]
witnesses or extend my time so I may write up exactly
everything that happend [sic].” Dkt. 10. In his second
response, plaintiff provides additional details about some of
the allegations in his complaint. Dkt. 12. In his third
response, plaintiff provides additional details about some of
the allegations in his complaint, presents new allegations,
and requests that I appoint him counsel. Dkt. 15.
reviewing plaintiff’s submissions, I conclude that he
cannot include each of his allegations in one case. I will
describe the possible lawsuits that plaintiff’s
submissions could support, and I will direct him to file an
amended complaint that contains only one set of related
allegations. I will also deny plaintiff’s request for
assistance recruiting counsel.
told, plaintiff’s factual allegations could give rise
to two separate lawsuits:
1. A case against Flaky, Field, defendant Mental Health
Counselor Sharon, and Lieutenant Christenson (who is not
currently a defendant in this case). Plaintiff alleges that
Flaky violated his Fourteenth Amendment rights by using
excessive force when he kicked plaintiff and by creating
unconstitutional conditions of confinement when he gave
plaintiff “little to no food.” Dkt. 5, at 2-3 and
Dkt. 12, at 1. Plaintiff also alleges that Field violated his
Fourteenth Amendment rights when he created unlawful
conditions of confinement by instructing jail staff to not
give plaintiff a blanket or a mattress and by giving
plaintiff little to no food. Dkt. 5, at 3 and Dkt. 15, at 1.
As for Sharon, plaintiff alleges that she violated his
Fourteenth Amendment rights by creating unconstitutional
conditions of confinement when she did not respond to
plaintiff’s complaint that he was not receiving a
blanket. Dkt. 15, at 1. Plaintiff also alleges that
Christenson violated his First Amendment right of access to
the courts by destroying video tapes of Flaky kicking him.
Id. at 2. Finally, plaintiff alleges that Field
violated his First Amendment rights by taking plaintiff
off-site and verbally intimidating him in retaliation for
filing grievances and lawsuits. Id.
2. A case against defendant Officer Lauer. Plaintiff alleges
that Lauer violated his Fourteenth Amendment rights by
ignoring his threats of suicide. Dkt. 12, at 1 and Dkt. 15,
at 2. Plaintiff also alleges that Lauer violated his First
Amendment right of access to the courts by denying him
grievance materials. Dkt. 15, at 2.
two sets of allegations arise from different events and are
against different defendants. Thus, plaintiff cannot combine
all of them into one case. See Dkt. 9, at 7.
direct plaintiff to file an amended complaint that alleges
all of the facts that he thinks are necessary to proceed with
one of the two lawsuits identified above. These allegations
must all be in one document, which will replace all
other complaints in this case. If plaintiff decides to pursue
any additional lawsuits that I have identified, then he must
submit separate complaints and initial partial payments of
$1.33 for each additional lawsuit. The clerk’s office
will open a new case for each complaint and partial payment
that it receives.
point, plaintiff’s complaint does not comply with
Federal Rule of Civil Procedure 8 because it does not provide
“a short and plain statement of the claim showing that
[plaintiff] is entitled to relief.” Plaintiff’s
complaint also does not comply with Rules 18 and 20 because
it includes unrelated claims against unrelated defendants. I
will therefore dismiss the complaint and give plaintiff an
opportunity to amend it.
I will deny plaintiff’s request for assistance
recruiting counsel. But I will do so without prejudice to
plaintiff renewing his request later in this case. Litigants
in civil cases do not have a constitutional right to a lawyer
and I have discretion to determine whether assistance
recruiting counsel is appropriate in a particular case.
Pruitt v. Mote, 503 F.3d 647, 654, 656 (7th Cir.
2007). To prove that assistance 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 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).
has not submitted letters from lawyers who have declined to
assist him with this case, which is reason enough to deny his
motion. See Jackson v. County of McLean, 953 F.2d
1070, 1072-73 (7th Cir. 1992) (“[T]he 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.”). If plaintiff decides to file a motion for
assistance recruiting counsel later in this case, then he
must provide adequate documentation that he has requested
assistance from at least three firms or attorneys, and that
these requests have been unsuccessful.
also cannot meet the second requirement for assistance
recruiting counsel: demonstrating that the legal and factual
difficulty of this case exceeds his ability to prosecute it.
It is too early to tell whether plaintiff’s claims will
outstrip his litigation abilities. In particular, the case
has not passed the early stage in which defendants may file a
motion for summary judgment based on exhaustion of
administrative remedies, which often ends up in dismissal of
cases such as plaintiff’s before they advance deep into
the discovery stage of the litigation. Should ...