United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Richard Rohl has brought an action under 42 U.S.C. §
1983. He has also filed a motion for leave to proceed in
forma pauperis and for the appointment of counsel.
Ordinarily, a plaintiff must pay a statutory filing fee of
$350 to bring suit in federal court. 28 U.S.C. § 1914.
The federal in forma pauperis statute, 28 U.S.C.
§ 1915, however, insures indigent litigants meaningful
access to the federal courts. Neitzke v. Williams,
490 U.S. 319, 324 (1989). Section 1915 authorizes an indigent
party to commence a federal court action, without costs and
fees, upon submission of an affidavit asserting an inability
“to pay such fees or give security therefor” and
stating “the nature of the action, defense or appeal
and the affiant's belief that the person is entitled to
redress.” 28 U.S.C. § 1915(a). Based on Rohl's
affidavit of indigence, the court is satisfied that he meets
the poverty requirements and his motion to proceed in
forma pauperis will be granted.
that some nonpaying litigants may attempt to abuse this
privilege, however, Congress also authorized the courts to
dismiss such a case if the allegation of poverty is untrue,
or if satisfied that the action (1) is frivolous or
malicious, (2) fails to state a claim on which relief may be
granted, or (3) seeks monetary relief against a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2). An
action is considered frivolous if there is no arguable basis
for relief either in law or fact. Neitzke, 490 U.S.
at 325. In making such determinations, the court must give
the plaintiff's pro se allegations, however
inartfully pleaded, a liberal construction. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). But even pro
se allegations must contain at least “some minimum
level of factual support.” White v. White, 886
F.2d 721, 724 (4th Cir. 1989).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must contain sufficient factual matter, accepted as
true, “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). The court accepts the
factual allegations as true and liberally construes them in
the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
complaint alleges a variety of injustices taking place over
several years. He claims that Officer Ver Velde and other
officers assaulted him outside a hospital in June
2006. He also alleges that District Attorney Douglass Jones
prosecuted him in violation of his right against double
jeopardy and Judge Daryl Deets illegally sent him to
Winnebago State Mental Hospital. Finally, Rohl claims AODA
counselor Dennis Owens sexually assaulted him, although he
does not provide any relevant details such as when the
alleged assault occurred, where it occurred, or what
happened. As a result, the complaint fails to state a
cognizable claim against any of the defendants it purports to
name. There are other problems as well.
County Circuit Judge Daryl Deets is absolutely immune from
civil liability for actions taken in his judicial capacity.
Pierson v. Ray, 386 U.S. 547, 554-555 (1967).
Assistant District Attorney Jones is likewise entitled to
absolute immunity for his prosecutorial work. Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)). Thus, any claims
against those defendants must be for conduct outside of their
normal judicial or prosecutorial functions.
extent the complaint provides any time frame for the events
alleged, it appears they occurred more than ten years ago.
The statute of limitations for actions under 42 U.S.C. §
1983, the statutory vehicle for alleging violations of
one's constitutional rights is six years. Gray v.
Lacke, 885 F.2d 399, 408-09 (7th Cir. 1989). Thus, it
may be too late for Rohl to file suit as to at least some of
based on the court's reading of the complaint, it appears
that Rohl is attempting to improperly bring unrelated claims
in a single case. As instructed by the Seventh Circuit, under
the controlling principle of Federal Rule of Civil Procedure
18(a), “[u]nrelated claims against different defendants
belong in different suits.” George v. Smith,
507 F.3d 605, 607 (7th Cir. 2007). While a “party
asserting a claim, counterclaim, crossclaim, or third-party
claim may join, as independent or alternate claims, as many
claims as it has against an opposing party, ”
Fed.R.Civ.P. 18(a), “Claim A against Defendant 1 should
not be joined with unrelated Claim B against Defendant
2.” George, 507 F.3d at 607. Moreover, Federal
Rule of Civil Procedure 20 provides that joinder of multiple
defendants into one action is proper only if “any right
to relief is asserted against them jointly, severally, or in
the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and any question of law or fact common to all
defendants will arise in the action.” Here, Rohl's
complaint violates the Federal Rules of Civil Procedure
insofar as it alleges unrelated claims against five unrelated
defendants and his § 1983 action must be dismissed.
dismissal shall be without prejudice, however. If he can do
so, Rohl may file an amended complaint curing the
deficiencies in the original complaint on or before June 26,
2017. Failure to file an amended complaint within this time
period will result in dismissal of this action. Rohl is
advised that the amended complaint must bear the docket
number assigned to this case and must be labeled
“Amended Complaint.” The amended complaint
supersedes the prior complaint and must be complete in itself
without reference to the original complaint.
request for the recruitment of counsel is also denied. The
legal standard for deciding motions to recruit counsel under
§ 1915(e)(1) in the Seventh Circuit requires the
district court to consider the difficulty of the case and the
pro se plaintiff's competence to litigate it
himself. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir.
2007) (en banc). Under the Pruitt standard, Rohl has
failed to demonstrate a need for court-recruited counsel.
Rohl's only justification for the appointment of counsel
is that he is unable to afford one on his own. Civil
litigants have no constitutional right to counsel.
McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982).
Rohl should be able to recruit his own counsel if he has a
meritorious claim. If he is unable to find counsel willing to
take his case and needs guidance in filing his complaint, he
may find assistance at the “Guide for Pro Se
Litigants” at the district's website, which can be
THEREFORE ORDERED that Plaintiff's motion for leave to
proceed in forma pauperis (ECF No. 2) is hereby
FURTHER ORDERED that, for the reasons stated, Plaintiff
Rohl's complaint is DISMISSED without prejudice.
FURTHER ORDERED that Plaintiff shall file an amended
complaint consistent with this Order on or before June 26,
2017. Failure to file the amended complaint will result in
the entry of final judgment and this case will be closed.
FURTHER ORDERED that, having dismissed the complaint,
Plaintiff's motion for recruitment ...