United States District Court, E.D. Wisconsin
AARON L. JACOBS, JR., Plaintiff,
CPL. WEED, LT. HALASI, LT. S. TIMRECK, D. OLSON, LT. P. STEFFEN, K. BARKLEY, CORPORAL LANGAN, R. LONGSINE, CPL. SMITH, and LT. H. MICHEL, Defendants.
DECISION AND ORDER SCREENING SECOND AMENDED COMPLAINT
UNDER 28 U.S.C. § 1915A (DKT. NO. 18) AND DENYING
REQUEST TO APPOINT COUNSEL (DKT. NO. 19)
PAMELA PEPPER United States District Judge.
18, 2016, the court screened the first amended complaint
pursuant to 28 U.S.C. §1915A. Dkt. No. 17. The court
determined that the plaintiff's claim that the Brown
County Jail's alleged policy of refusing to let the
plaintiff review his incoming mail before it was returned to
the sender was sufficient to state a claim upon which relief
could be granted. Id. at 6; see also Van den
Bosch v. Raemisch, 658 F.3d 778, 785-86 (7th Cir. 2011).
Because the plaintiff did not identify any defendants
involved with this claim, however, the court provided the
plaintiff an opportunity to file a second amended complaint,
naming the defendant(s) who were personally involved in the
claim. Dkt. No. 17 at 6. On August 8, 2016, the plaintiff
filed his second amended complaint. Dkt. No. 18.
second amended complaint, the plaintiff alleges that Brown
County Jail officials, pursuant to Jail policy, failed to
provide him with incoming mail, and returned the mail to the
sender, on four separate occasions. Dkt. No. 18 at 3-5.
Specifically, he alleges that defendants “MC, ”
K. Barkley (on two occasions), and R. Longsine rejected his
mail and returned it to the sender without providing notice
to the plaintiff. Id. The plaintiff alleges that he
filed an inmate complaint related to each incident.
Defendants Cpl. Weed, Lt. P. Steffen, Cpl. Langan, and Cpl.
Smith dismissed the plaintiff's grievances as unfounded.
The plaintiff appealed the dismissals of his grievances.
Defendants Lt. Halasi, Lt. Timreck, and Lt. Michel upheld the
dismissals on appeal. Id.
court finds that the plaintiff may proceed on his claims
under the First Amendment against the defendants who rejected
his mail: defendants MC, Barkley and Longsine. The plaintiff
may not proceed against the Brown County Jail officials who
dismissed his inmate grievances and upheld the dismissals on
appeal, because those officials did not have any personal
involvement in the incidents. See George v. Smith,
507 F.3d 605, 609-10 (7th Cir. 2007) (“Ruling against a
prisoner on an administrative complaint does not cause or
contribute to the [constitutional] violation.”);
see also Burks v. Raemisch, 555 F.3d 592, 595-96
(7th Cir. 2009). Accordingly, the court will dismiss
defendants Weed, Langan, Smith, Steffen, Halasi, Timreck, and
Michel. Finally, the complaint does not contain any
allegations against defendant Olson and, the court will
November 3, 2016, the court received a letter from Gerald
Jackson, writing on behalf of the plaintiff. Dkt. No. 19. The
letter indicated that the plaintiff had been representing
himself up to that point, but that he wouldn't be able to
do that any longer. Mr. Jackson explained that the plaintiff
had made some suicide attempts, and the Brown County Jail
personnel had removed all of his legal papers and writing
materials as a result. Mr. Jackson told the court that the
plaintiff has been moved to the Mendota Mental Health
facility. Id. at 1-2. For all of these reasons, Mr.
Jackson asked, on the plaintiff's behalf, that the court
appoint a lawyer to represent him. Two weeks later, Mr.
Jackson sent another letter, telling the court that the
plaintiff had returned to the Brown County Jail. Dkt. No. 20.
civil case, the court has discretion to decide whether to
recruit a lawyer for someone who cannot afford one.
Navejar v. Iyola, 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). First,
however, the person has to make a reasonable effort to hire
private counsel on their own. Pruitt v. Mote, 503
F.3d 647, 653 (7th Cir. 2007). After the plaintiff makes that
reasonable attempt to hire counsel, the court then must
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). To decide that, the court looks, 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
court understands that the plaintiff has been pursuing his
claims under difficult circumstances-Mr. Jackson indicates
that the plaintiff has attempted suicide, that he's lost
(perhaps temporarily) the use of his legal papers and
materials, and that he's been moved twice. But in order
for the court to consider appointing counsel to represent the
plaintiff, it needs more information. It needs to know
whether he has tried to find a lawyer on his own. He can
provide that information by giving the court a list of the
names of any attorneys he has tried to hire. The court also
needs to know whether the plaintiff is under suicide watch
now, and whether he has had his legal papers returned to him
at Brown County. The court does not have the resources to
appoint a lawyer to everyone who asks-not even to every
inmate, even though litigating a case is difficult when one
is incarcerated, isnt' legally trained, and does not have
court will deny the plaintiff's request to appoint
counsel at this time. The next step in the process is for the
defendants to file their answer to the complaint. Once
they've done that, the court will set a schedule for the
parties to exchange information about the plaintiff's
claims. If, at any point in the future, the plaintiff still
feels that he needs the assistance of counsel, and he provide
the court with the information the court requests, the court
will consider his request at that time.
court ORDERS that the second amended
complaint is the operative complaint in this action. Dkt. No.
court DISMISSES defendants Weed, Langan,
Smith, Steffen, Halasi, Timreck, Michel and Olson.
court DENIES WITHOUT PREJUDICE the
plaintiffs request to appoint counsel. Dkt. No. 19.
court ORDERS that the United States Marshal
shall serve a copy of the second amended complaint (Dkt. No.
18) and this order upon the defendants pursuant to Federal
Rule of Civil Procedure 4. The court advises the plaintiff
that Congress requires the U.S. Marshals Service to charge
for making or attempting such service. 28 U.S.C.
§1921(a). The current fee for waiver-of-service packages
is $8.00 per item mailed. The full fee schedule is provided
at 28 C.F.R. §§0.114(a)(2), (a)(3). Although
Congress requires the court to order service by the U.S.
Marshals Service precisely because in forma pauperis
plaintiffs are indigent, it has not made any provision for
these fees to be waived either by the court or by the U.S.
court ORDERS that the defendants shall file
a responsive pleading ...