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Carter v. Hooper

United States District Court, W.D. Wisconsin

August 16, 2016

TOMMIE L. CARTER, Plaintiff,
v.
PATRICK C. HOOPER and BRENT H. EXNER, Defendants. TOMMIE L. CARTER, Plaintiff,
v.
ANTONIO CUMMINGS, ROBERT PICKLE, JAY VANLANEN and AMY GANDY, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge

         Pro se plaintiff Tommie Carter is a prisoner in the custody of the Wisconsin Department of Corrections. In these two civil cases, he is proceeding on the following claims: (1) defendants Patrick Hooper and Brent Exner used excessive force against him on February 28, 2013, while removing plaintiff’s restraints, in violation of the Eighth Amendment (case no. 16-cv-54-bbc); (2) defendants Antonio Cummings and Robert Pickle were aware of a substantial risk that plaintiff would seriously harm himself on October 17, 2013, but they consciously failed to take reasonable measures to prevent the harm, in violation of the Eighth Amendment (case no. 16-cv-55-bbc); and (3) defendant Jay Vanlanen refused to take pictures of plaintiff’s injuries on October 17, 2013, in violation of plaintiff’s right to have access to the courts (case no. 16-cv-55-bbc).

         For the last few months, plaintiff has continued the trend from his previous cases in this court of filing a series of motions in which he alleges various of acts of misconduct by prison officials, some related to his lawsuits and some not. In addition, plaintiff has filed a motion for default judgment (case no. 16-cv-54-bbc), a motion for assistance in recruiting counsel (both cases), a motion to take the depositions of defendants (case no. 16-cv-54-bbc) and a motion for a competency determination (case no. 16-cv-55-bbc). For the reasons discussed below, I am denying all of plaintiff’s motions in full.

         OPINION

         A. Motion for Assistance in Recruiting Counsel (both cases)

         Before a district court can consider a request for counsel, it must first find that the plaintiff has made reasonable efforts to find a lawyer on his own and was unsuccessful or was prevented from making such efforts. Jackson v. County of McLean, 953 F.2d 1070 (7th Cir. 1992). To prove that he has made reasonable efforts to find a lawyer, plaintiff must give the court letters from at least three lawyers who denied plaintiff's request for representation. Alternatively, if the lawyers plaintiff writes do not respond after 30 days, plaintiff may explain the efforts he took to obtain a lawyer in a declaration sworn under penalty of perjury. Plaintiff should include the date he sent the letters. In addition, plaintiff should send a copy of the letter that he sent the lawyers.

         Plaintiff has not shown that he has made reasonable efforts to obtain a lawyer on his own. Although plaintiff says that he has asked more than 40 lawyers to represent him, he provides no evidence to support that allegation.

         Even if plaintiff had shown that he had made reasonable efforts to find his own lawyer, I would deny plaintiff's motion. Court assistance in recruiting counsel is appropriate only when the plaintiff demonstrates 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 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.

         As I have told plaintiff several times before, he has shown that he is more than capable of acting as his own advocate. After having filed several cases in this court, he is now a seasoned litigator who is familiar with both the law and court procedure. Further, neither of these cases is particularly complex. Plaintiff has not shown that he needs expert testimony or an understanding of complicated medical or scientific issues. The law is clearly established with respect to all of his claims.

         The only specific reason that plaintiff gives for needing a lawyer in this case is that his frequent placement in observation status makes it difficult for him to obtain basic materials needed to file documents with the court or conduct discovery. This statement is obviously false. It is rare that more than a week or two passes in which plaintiff does not file something with the court. In fact, few litigants (pro se or otherwise) file as many motions as plaintiff. Of the 71 docket entries in case no. 16-cv-55-bbc, nearly all of them are the result of a motion plaintiff filed. There is simply no plausible basis for plaintiff to allege that he is unduly restricted in his ability to communicate with the court or in obtaining writing materials.

         B. April 27, 2016 Motion for Default Judgment (Case no. 16-cv-55-bbc)

         Plaintiff seeks a default judgment on the ground that defendants failed to file a timely answer. However, defendants filed their answer on April 18, 2016, which was within the 40-day deadline set in the screening order and established under the court’s Memorandum of Understanding with the Wisconsin Department of Justice. (A copy of the memorandum is attached.) Accordingly, I am denying plaintiff’s motion for a default judgment.

         C. April 4, 2016 Motion for Protective Order (Both Cases)

         Plaintiff asks for an order directing prison officials to preserve records showing that defendants may have been disciplined for the conduct that prompted these lawsuits. In response, defendants say that no such records exists and that they are aware of their duty to preserve ...


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