United States District Court, W.D. Wisconsin
STEPHEN L. CROCKER Magistrate Judge.
plaintiff Jon Soto brings claims that defendants David
Gibbons and Kevin Ely, officers employed by the Trempealeau
County Sheriff's Office, violated his Fourth Amendment
rights by entering his home to arrest him without a warrant.
Plaintiff also brings a Wisconsin-law wrongful death claim
for defendants' actions during the search, which
plaintiff says contributed to his mother's death.
Defendants have filed a motion for summary judgment.
Plaintiff has filed a motion for additional time to conduct
discovery, and a motion for appointment of counsel. He has
also filed a document titled as “Motion in Support of
Granting Summary Judgment for Plaintiff Soto, ” dkt.
59, which I take to be an attempt at a response to
defendants' motion, even before the discovery issue has
I will address plaintiff's request for counsel. Although
plaintiff asks for “appointment” of counsel,
litigants in civil cases do not have a constitutional right
to a lawyer, and this court has no authority to force a
lawyer to take the case. But I have discretion to determine
whether assistance in recruiting counsel is appropriate in a
particular case. Pruitt v. Mote, 503 F.3d 647, 654,
656 (7th Cir. 2007).
that it is appropriate for the court to recruit counsel, a
litigant must first show that he has made reasonable efforts
to locate an attorney on his own. See Jackson v. Cty. 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. Plaintiff has not submitted any rejection
letters, but he states that he has contacted several lawyers,
none of which have agreed to take the case. The court might
usually require plaintiff to follow up with more information
about his efforts to contact counsel, but there is no reason
to do so here because even if it was clear that plaintiff had
made efforts to locate counsel, he fails to show that he
cannot litigate the case himself.
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.
Plaintiff asks for an attorney to help him settle the case,
but he provides no information explaining why he cannot
contact defendants' counsel himself, or any other reason
he cannot litigate the case himself in terms of negotiating a
settlement or litigating the summary judgment and trial
phases. As discussed further below, plaintiff does appear to
be somewhat confused about his responsibilities in conducting
discovery, but that alone is not a reason to recruit counsel.
I will deny plaintiff's motion without prejudice to him
renewing his motion if he believes that he cannot litigate
the case himself. If he does renew his motion, he will need
to explain with specificity what litigation tasks he cannot
complete on his own.
plaintiff asks for more time to conduct discovery, stating
that he did not know that he could conduct discovery during
the pendency of defendants' previous motion to dismiss
the case. Defendants argue that plaintiff should have known
better given the instructions in the court's preliminary
pretrial conference order, and that plaintiff should not have
waited until defendants filed their motion for summary
judgment to raise the issue.
I agree with defendants that plaintiff should have been
active with discovery much sooner, defendants' desire to
promptly litigate their summary judgment motion is tempered
by their own failure to follow this court's procedures.
Although they have submitted a motion for summary judgment,
they did not include a statement of proposed findings of fact
fully setting forth the factual basis for their motion, as
mandated by this court's procedures and discussed in the
court's preliminary pretrial conference order.
See Dkt. 31, at 14. I will give defendants a short
time to submit that document. Plaintiff will have the same
time to send discovery requests to defendants. I expect
defendants to respond to these requests reasonably quickly. I
will build in some time for plaintiff to receive
defendants' materials and file a brand new response to
the summary judgment motion.
current response, plaintiff notes that defendants have not
filed proposed findings of fact. He then goes on to provide
his own proposed findings, dkt. 60. The clerk of court has
already returned that document to plaintiff so that he can
sign it. But plaintiff will have to fix his response in other
ways as well. First, he should wait until he receives
defendants' responses to his discovery requests, so that
he has all the information he needs to formulate his summary
judgment response. Second, he will need to make sure that
each of his proposed findings of fact includes a reference to
the evidence in the record that supports that fact. Many of
his current findings do not explain what evidence supports
plaintiff's statements. If plaintiff is referring to
something in his own personal knowledge, he should include
that fact in his own affidavit and then cite his affidavit in
the appropriate numbered proposed finding. If he is referring
to a piece of evidence already in the record of this case, he
should cite that piece of evidence. If he is referring to
some other piece of evidence not yet in the record, he should
attach that evidence to his summary judgment response, and
then cite that evidence in his numbered proposed finding.
schedule is amended as follows:
Defendants' deadline to submit proposed findings of fact:
January 9, 2017
Plaintiff's deadline to send defendants his discovery
requests: January 9, 2017
Plaintiff's summary judgment response deadline: February
Defendants' summary judgment reply deadline: February 21,
Judge Peterson explained in his August 17, 2016 order, the
trial date has been stricken and a new date will be set