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Santos v. Kartman

United States District Court, E.D. Wisconsin

August 14, 2017

MARK KARTMAN, et al., Defendants.


          HON. PAMELA PEPPER United States District Judge.

         I. Motion for Extension of Time

         The defendants filed a motion for summary judgment on June 23, 2017. Dkt. No. 20. The plaintiff asked the court to extend the deadline by which he was required to respond, dkt. no. 29; three weeks later, the court received from the plaintiff a timely response to the motion, dkt. nos. 32-35. The court will deny the plaintiff's motion for an extension of time as moot.

         II. Motion for Reconsideration and Motion for Protective Order

         On June 30, 2017, the court denied the plaintiff's motion to compel the production of a confidential document that defendants refused to produce in response to a discovery request, because the court found that the plaintiff's motion was premature. Dkt. No. 28. In that same order, the court denied without prejudice the plaintiff's motion for the recruitment of counsel. Id. A little more than a week later, the court received from the plaintiff a motion for reconsideration of both decisions. Dkt. No. 30. The defendants oppose the motion, and have asked the court to enter a protective order in connection with the confidential document. Dkt. No. 36. For the reasons explained below, the court will deny the plaintiff's motion asking the court to reconsider its denial of his motion to appoint counsel, and will require the defendants to deliver the confidential document to the court's chambers for an in camera review.

         A. Reconsideration of Order Denying Motion for Appointment of Counsel

         In a 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). The litigant must first, however, make reasonable efforts to hire private counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). Once the litigant demonstrates that he has made reasonable attempts to hire counsel, the court then decides “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). 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 motions.” Id.

         Most incarcerated plaintiffs who are representing themselves ask the court to appoint counsel to represent them. Most of them are not lawyers, do not have any legal training, do not have funds to hire an attorney, and have limited access to legal research materials. The court does not have the resources to pay lawyers to represent pro se plaintiffs, and there are not enough lawyers in the community willing to volunteer their time to represent pro se plaintiffs. Accordingly, the court must consider carefully the Pruitt factors and appoint counsel only in complex cases where it believes the plaintiff is not capable of clearly presenting his claims to the court.

         The plaintiff has satisfied the first Pruitt factor by demonstrating that he made reasonable attempts to hire private counsel on his own. Dkt. No. 31. The court, however, will not recruit counsel to represent him at this time because the court is satisfied that the plaintiff is capable of representing himself. The issues in the case are not complex, and the plaintiff successfully has served discovery, filed numerous motions, and filed a response to the defendants' motion for summary judgment. The court has not had any problems understanding the plaintiff's communications: they are well thought-out, organized and supported by relevant case law.

         In fact, it appears that the plaintiff's only reason for wanting an attorney is so that the attorney can view the confidential document that the defendants refuse to produce. As explained below, the court will order the defendants to deliver that document to its chambers so that it can confirm that defendant Mark Kartman's responses to the plaintiff's interrogatories about the document fully and accurately summarize the information relevant to the plaintiff's claim. In light of this, there is no reason for a pro bono attorney to review the document. The court believes that the plaintiff is otherwise capable of representing himself at this time, so it will deny his motion for reconsideration of that decision.

         B. Reconsideration of Denial of Motion to Compel

         The plaintiff alleges that Kartman said he fired the plaintiff from his prison job because the plaintiff refused to participate in the investigation of a series of gang-related fights, despite Kartman's belief that the plaintiff had relevant information (the plaintiff denies that he had any relevant information). Dkt. No. 1 ¶27. During discovery, the plaintiff asked Kartman to produce documents that supported Kartman's assertion that the plaintiff was involved in or had information about the fights. The defendants responded with some documents, but they noted that they were withholding an eight-page document containing notes of confidential interviews conducted as part of the investigation. Dkt. No. 28 at 2. To provide the plaintiff with relevant information without disclosing the confidential document itself, the defendants suggested that the plaintiff serve an interrogatory on Kartman, seeking information about what Kartman knew based on his investigation.

         The plaintiff did so, and Kartman responded to the interrogatory as follows: “During a confidential interview with security staff, an inmate stated that plaintiff was supposed to be involved in the altercation.” Dkt. No. 37 at 4. Kartman further explained,

This indicated that plaintiff may have falsely denied involvement during plaintiff's interview. It also indicated plaintiff was a security threat if allowed to continue working in the kitchen, both because of his reported involvement in security threat group activities, and because of a risk of attack by other security threat group activities, and because of a risk of attack by other security threat group members as ...

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