United States District Court, E.D. Wisconsin
AND ORDER DENYING THE PLAINTIFF'S MOTION FOR
INTERROGATORY DISCOVERY AND MOTION TO APPOINT COUNSEL (DKT.
NO. 39), AND ORDERING THE PLAINTIFF TO FILE HIS RESPONSE TO
THE DEFENDANTS' MOTION TO DISMISS/MOTION FOR SUMMARY
JUDGMENT BY AUGUST 7, 2017.
PAMELA PEPPER United States District Judge.
plaintiff filed this lawsuit on June 22, 2015. Dkt. No. 1.
The court required him to amend the complaint several times;
he filed his second amended complaint on October 17, 2016.
Dkt. No. 23. The court screened that complaint, and allowed
the plaintiff to proceed on a single claim: that Thomas
Ozelie and Allan Tenhaken arrested him without probable cause
in violation of the Fourth Amendment. Dkt. No. 24 at 7. The
plaintiff also asserted in his complaints that he did not get
a probable cause hearing within forty-eight hours of his
arrest; although the court allowed him to try three times,
the plaintiff never stated who it was who prevented him from
getting a timely probable cause hearing, and the court did
not allow him to proceed on that claim. Id. at 6.
April 3, 2017, defendants Thomas Ozelie and Allan Tenhaken
filed a combined motion to dismiss under Fed.R.Civ.P.
12(b)(6) and motion for summary judgment. Dkt. No. 34. The
defendants filed this motion as a response to the
plaintiff's second amended complaint (dkt. no. 23). The
defendants attached to that motion a copy of the local rules
governing motions for summary judgment, dkt. no. 34 at 2;
Civil L.R. 56(c) requires a party who opposes a motion for
summary judgment to file his brief and other documents within
thirty (30) days of service of the motion. The defendant
served the motion on April 3, 2017, dkt. no. 37, which means
the plaintiff's response was due May 3, 2017. As of
today's date, the plaintiff has not filed a response.
1, 2017, however, the plaintiff filed a document which he
called “motion for interrogatory discovery and motion
to appoint counsel.” Dkt. No. 39. The plaintiff
indicates that he believes his case is very complex to
handle, and that he's been trying to handle it himself,
with help from jailhouse lawyers. He says he did not realize
the case would be so difficult. He asks if he is able to
“retain” a lawyer, and if he can “put in a
motion for an interrogatory discovery.” Id. at
1. He also asks for some time to go over the discovery
material, to help him provide the court “with the names
of the defendants involved in the process of scheduling the
probable cause hearing.” Id. He says that he
never had a chance to challenge the legitimacy of his
criminal case. Id.
defendants object to the second part of the plaintiff's
request-the part where he asks to file interrogatory
discovery, and to have time to review the responses. Dkt. No.
40. The defendants argue that one of the documents they filed
in support of the motion to dismiss/motion for summary
judgment is a document that shows that the plaintiff did get
a probable cause hearing within forty-eight hours of his
arrest, and that there is evidence which shows that the
defendants had probable cause to arrest the plaintiff. Given
that, the defendant argues, the plaintiff cannot prevail
whether he names two defendants or ten. Id. at 2-4.
The defendants do not object to the court giving the
plaintiff additional time to respond to their motion.
Motion to Appoint Counsel
civil case, the court has discretion 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). However, the litigant first must make
reasonable efforts to hire private counsel on his own.
Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
In order to demonstrate this, the plaintiff must provide the
court with proof that he has contacted at least three lawyers
and asked them to represent him, and that they have declined.
A plaintiff may demonstrate this by providing the court with
a list of the names and addresses of the attorneys he has
contacted, or with copies of their rejection letters.
plaintiff has not satisfied the first Pruitt
factor-he has not provided the court with any proof that he
has tried to find an attorney on his own. The court will deny
without prejudice the plaintiff's motion to appoint
counsel; this means that he can renew the motion once he has
made attempts to find a lawyer himself.
Request to Conduct Interrogatory Discovery
the plaintiff's request to “put in a motion for
interrogatory discovery” to identify the John Does who
failed to schedule his probable cause hearing, the
plaintiff's request is premature. The plaintiff first
must respond to the defendants' motion to dismiss/motion
for summary judgment. It may be that, in reading through the
documents the defendants filed in support of their motion to
dismiss/motion for summary judgment, the plaintiff may find
out the names of some of the people who were involved in
setting probable cause hearings. Regardless, if the court
denies the defendants' motion, the court will enter a
scheduling order, which will include deadlines for conducting
discovery and filing other kinds of motions.
Plaintiff's Response to the Defendants'
court noted above, the defendants have filed a motion to
dismiss this case and, in the alternative, have asked the
court to grant summary judgment in their favor. Dkt. No. 34.
If the plaintiff wants to go forward with the case-if he
wants the court to deny the defendants' motion-his next
step is to file a brief in opposition to the motion,
explaining why the court should not dismiss the case. The
plaintiff should be able to look at the documents that the
defendants have filed-their motion, their brief, the
declaration of their lawyer, and the documents attached to
that declaration-and explain, in plain English, why those
documents fail to show that the defendants had probable cause
to arrest the plaintiff. He does not have to use fancy legal
language, or even cite case law. He simply can explain why