United States District Court, E.D. Wisconsin
EARNEST L. JOHNSON, JR., Plaintiff,
DR. EUGENE BURKE, et al., Defendants.
DECISION AND ORDER
ADELMAN, District Judge.
Earnest Johnson, filed an action under 42 U.S.C. § 1983,
alleging that defendants violated his civil rights. This
matter comes before me on: (1) plaintiff's third request
to change payment from the full filing fee ($350.00) to
$304.12 (ECF No. 24), (2) plaintiff's
“response” to the screening order issued August
10, 2016 (ECF No. 25); (3) plaintiff's fourth motion to
appoint counsel (ECF No. 26); and (4) plaintiff's motion
to amend/correct the addresses of Dr. Maria Beg and Dr.
Jeffrey Shovers (ECF No. 27).
on Payment of the Filing Fee
Prison Litigation Reform Act (“PLRA”) allows
inmates to proceed with their lawsuits in federal court
without pre-paying the $350 filing fee. 28 U.S.C. §
1915. However, this right is only available to a petitioner
that is “unable to pay such fees or give security
therefor.” § 1915(a)(1). Plaintiff was able to pay
the full filing fee at the time the lawsuit was filed, and he
in fact paid the amount. Therefore, his third request to
change payment $350.00 to $304.14 is denied.
is advised that it is within my inherent power as a federal
court to sanction vexatious litigants. See Chambers v.
NASCO, Inc., 501 U.S. 32, 43-46 (1991); Bus. Guides,
Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S.
533, 540-54 (1991). This rule holds true for vexatious
lawyers as well as vexatious inmates. See Smith v.
Gleason, No. 12-CV-633, 2013 WL 6238488, at *8 (W.D.
Wis. Nov. 27, 2013). I am obligated to allocate the
court's resources so as to assure that “the
interests of justice are served and the courthouse doors
remain open to all, not simply to the relentless.”
Id. (citing In re McDonald, 489 U.S. 180,
184 (1989); then citing Procup v. Strickland, 792
F.2d 1069, 1073-74 (11th Cir. 1986) (en banc) (per curiam);
then citing Ruderer v. Fines, 614 F.2d 1128, 1130-32
(7th Cir. 1980); and then citing Support Sys. Int'l,
Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995)). Therefore,
plaintiff is now warned that he risks sanctions, including
monetary penalties, if he continues to abuse scarce judicial
resources with repetitive filings. See United States v.
Robinson, 251 F.3d 594, 595 (7th Cir. 2001) (approving
the use of sanctions, after adequate warning, against
“a litigant who inundates the court with frivolous
motions, imposing costs in time and paperwork on the court
and its staff and delaying the disposition of meritorious
appeals and motions”).
Response to the Screening Order
plaintiff also filed a letter explaining that several facts
in the screening order issued August 10, 2016 are either
incomplete or inaccurate. ECF No. 25. I understand
plaintiff's desire to get every detail correct, but
corrections of this nature are unnecessary at this point in
the litigation. I have already allowed plaintiff to proceed
against each defendant who was personally involved in the
constitutional deprivation. Should defendants file an answer
to the amended complaint, the parties can use discovery to
flesh out the details of that claim.
to Appoint Counsel
discretion to recruit counsel for litigants unable to afford
one in a civil case. Navejar v. Iyiola, 718 F.3d
692, 696 (7th Cir. 2013); 28 U.S.C. § 1915(e)(1);
Ray v. Wexford Health Sources, Inc., 706 F.3d 864,
866-67 (7th Cir. 2013). However, litigants must first show
that they have made reasonable attempts to secure private
counsel on their own. Pruitt v. Mote, 503 F.3d 647,
653 (7th Cir. 2007). Plaintiff must contact at least three
attorneys and provide me with (1) the attorneys' names,
(2) their addresses, (3) the date and way plaintiff attempted
to contact them, and (4) the attorneys' responses. To
that end, plaintiff must do more than merely assert that he
contacted several attorneys.
the litigant makes that attempt, I then decide “whether
the difficulty of the case - factually and legally - exceeds
the particular plaintiff's capacity as a layperson to
coherently present it.” Navejar, 718 F.3d at
696 (citing Pruitt, 503 F.3d at 655). I look not
only at the plaintiff's ability to try his case but also
at his ability to perform other “tasks that normally
attend litigation, ” such as “evidence
gathering” and “preparing and responding to
asserts that he “is able to pay for a lawyer” and
that he has “over $6, 000 in my work account.”
ECF No. 26, ¶¶ 1, 3. He attaches his trust fund
activity sheet to show that he has over $6, 000 in his
account. ECF No. 26-1. I only have discretion to appoint
counsel for those individuals “unable” to afford
one. Navejar, 718 F.3d at 696. Therefore, I must
deny his motion to appoint counsel without prejudice.
as discussed in my prior decision and order (ECF No. 17), all
plaintiff must do at this point in the litigation is wait for
an answer from the defendants. If and when defendants file an
answer, I will issue a scheduling order with further
instructions on how to proceed with the case. Plaintiff will
be able to ask the defendants to answer his interrogatories
regarding the alleged events, Fed.R.Civ.P. 33, and he will be
able to conduct discovery regarding any reports or records
that resulted from the alleged events, Fed.R.Civ.P. 34. He
also will be able to present the court with his version of
events, through an affidavit or unsworn declaration under 28
U.S.C. § 1746, in response to any motion for summary
judgment that the defendants might file. I have no evidence
before me right now to indicate that plaintiff cannot handle
these tasks on his own.
to Correct Addresses of Dr. Maria Beg and Dr. Jeffrey
seeks to amend or correct the addresses of Dr. Maria Beg and
Dr. Jeffrey Shovers. The U.S. Marshal is currently in the
process of serving all defendants. ECF No. 23. Once these
individuals are served, their attorneys will file an
appearance with the court and can update their addresses ...