United States District Court, W.D. Wisconsin
Michael A. Alexander, Plaintiff,
Dr. James Richter, et al. Defendants.
STEPHEN L. CROCKER Magistrate Judge.
court has permitted pro se plaintiff Michael
Alexander leave to proceed on Eighth Amendment claims arising
from the defendants failure to respond to his requests for
eye examinations, which led to headaches and migraines. Since
permitting Alexander leave to proceed, he has filed a Motion
for Issuance of Subpoena (dkt. #30) and a Motion for
Appointment of Counsel (dkt. #33). For the following reasons,
I am denying them without prejudice.
Motion for Issuance of Subpoena (dkt. 30)
initially requested seven blank subpoenas from the Clerk of
Court pursuant to Federal Rule of Civil Procedure 45(a)(3),
which requires the clerk to issue subpoenas that are,
"signed but otherwise in blank." The clerk denied
his request, instructing him that if he would like the clerk
to comply with his request, he must file a motion with the
court that (1) specifies what he is seeking, (2) explains how
the subpoena would be relevant to his claims in this lawsuit
and (3) if he is seeking to take depositions, show that he is
capable of paying for the cost of such witnesses' time
and mileage in accordance with Fed.R.Civ.P. 45(b)(1). (Dkt.
#29.) Alexander's motion does not meet that requirement.
initial matter, Alexander is correct that Fed.R.Civ.P. 45
does not require a litigant to submit a motion when
requesting the clerk to issue subpoenas. Nonetheless, this
court requires pro se litigants such as Alexander to
file the motion described by the clerk. The court undergoes
this process as a general rule for pro se litigants
because they often lack knowledge about the legal
requirements of subpoenas. The court's review ensures
that the desired subpoenas will be issued to only individuals
and entities that are related to the lawsuit to avoid the
unnecessary cost, inconvenience, and waste of judicial
resources that may arise following issuance of a frivolous or
irrelevant subpoena. See Bemegger v. Banks, No.
08-C-156, 2008 WL 4866623, *1 (E.D. Wis. Nov. 10, 2008)
(denying pro se litigant a request for a blank
subpoena, reasoning that court review of such requests are
appropriate due to the possibility that the subpoenas would
be used for inappropriate circumstances). While pro
se litigants may be slightly inconvenienced by making
the showing the court requires, the inconvenience suffered is
far outweighed by the potential for significant
inconveniences that would accompany the issuance of improper
Alexander would like seven blank subpoenas. While it appears
that he would like to conduct discovery from individuals with
knowledge about the eye care he received at Columbia
Correctional Institution ("Columbia"), he did not
provided any specific information about (1) who he would like
to serve with the subpoenas; (2) what information, documents
or testimony he is seeking to obtain; or (3) whether he has
the financial means to cover the costs associated with any
depositions he would like to take. As such, I cannot assess
whether his requested subpoenas will comply with the
requirements of Fed.R.Civ.P. 45. Without more information, I
will not require the clerk to comply with his request.
if Alexander is seeking subpoenas to ensure certain witnesses
appear at trial, he has not complied with this court's
order on that subject. I issued an order following its
pretrial conference with the parties that included
instructions on how to request the Clerk of Court to issue
subpoenas on their behalf for use at trial. (Preliminary
Pretrial Conference Order, dkt. 27.) In particular, pages
61-62 describe the process Alexander must undertake if he is
interested in having the Clerk of Court issue subpoenas on
his behalf to ensure witness attendance at trial.
(Id. at 60-61.) The order directs the party seeking
the subpoena to provide the court with certain information,
tender an appropriate amount of money when the witness is
served, and submit an affidavit explaining that the witness
is refusing to testify voluntarily, that the party has made
arrangements for service through a private party or will need
the assistance of the U.S. Marshall, and that the party is
prepared to tender witness fees. As Alexander has not
followed any of these requirements, I am denying his motion,
but is doing so without prejudice to his ability to renew his
motion in a manner that meets the requirements described
Motion for Appointment of Counsel (dkt. 33)
to Alexander's Motion for Appointment of Counsel,
although civil litigants like plaintiff have no
constitutional or statutory right to the appointment of
counsel, e.g., Ray v. Wexford Health Sources, Inc.,
706 F.3d 864, 866 (7th Cir. 2013); Luttrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997), the court has
the discretion to recruit a volunteer in an appropriate case.
Alexander attaches letters her wrote to three attorneys
requesting representation, and he states that he has not
received a response from any of them. Thus, he has fulfilled
the threshold requirement of showing that he made reasonable
efforts to retain an attorney on his own. Jackson v.
County of McLean, 953 F.2d 1070, 1072-73 (7th Cir.
requests that the court recruit counsel for the discovery
process because the doctors that provided him with care no
longer work at Columbia. After reviewing the materials
plaintiff has submitted, however, at this early stage I do
not agree that his case presents the sort of circumstances
that would justify recruitment of counsel. Specifically, I am
not persuaded that the complexity of this case exceeds
plaintiffs ability to present it to a jury on his own.
See Pivitt v. Mote, 503 F.3d 647, 655 (7th Cir.
2007). Alexander does not explain why he is incapable to
handling the discovery process on his own, and his filings
thus far indicate that he has the ability to do so. Indeed,
his submissions have been clearly written, easy to understand
and include citations to relevant legal authority. Further,
while he may not have yet followed the instructions regarding
subpoenas, this order as well as the Preliminary Pretrial
Conference Order provides specific instructions about how he
may proceed with discovery in compliance with the applicable
Federal Rules of Civil Procedure. (Dkt. #27, at 7-9.)
Alexander has not explained any failed attempts he has made
to obtain discovery on his own, so it does not appear that he
is unable to use the resources at his disposal to proceed
with discovery alone.
pro bono counsel may be able to present Alexander's case
more effectively than he can. But "if that were the
test, district judges would be required to recruit counsel
for every indigent litigant." Pniitt, 503 F.3d
at 655 (quoting Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006)) (internal quotation marks omitted).
This court receives many more requests for counsel than the
small pool of available volunteers can accommodate. Based on
all the facts and circumstances before the court at present,
neither the case itself nor Alexander's personal
circumstances suggests that he is unable to try it on his
own. Accordingly, I will deny the motion for appointment of
counsel without prejudice to Alexander's ability to renew
his motion should it become apparent that the demands of this
lawsuit exceed his ability to proceed without the assistance
of an attorney. If Alexander renews his motion, he should
include a detailed explanation of the specific difficulties
Alexander has encountered in trying to litigate this matter.