United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
who is incarcerated at the Wisconsin Secure Program Facility,
filed a pro se complaint claiming his civil rights
were violated. See (Docket #1). Before the Court are
two recent motions: (1) Plaintiff's second motion
requesting the appointment of counsel, (Docket #17); and (2)
Plaintiff's motion for an order directing prison
officials to return funds deducted from his prison trust
account for payment of the filing fee in this case, (Docket
#18). For the reasons stated below, both motions will be
Second Motion for Appointment of Counsel
civil litigant, Plaintiff has no automatic right to
court-appointed counsel. Luttrell v. Nickel, 129
F.3d 933, 936 (7th Cir. 1997). However, under 28 U.S.C.
§ 1915(e)(1), the “court may request an attorney
to represent any person unable to afford counsel.” The
court should seek counsel to represent the plaintiff if: (1)
he has made reasonable attempts to secure counsel; and (2)
“‘the difficulty of the case-factually and
legally- exceeds the particular plaintiff's capacity as a
layperson to coherently present it.'” Navejar
v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)
(en banc)). The Seventh Circuit has emphasized that
“[t]he question is not whether a lawyer would present
the case more effectively than the pro se plaintiff;
‘if that were the test, district judges would be
required to request counsel for every indigent
litigant.'” Pruitt, 503 F.3d at 655
(quoting Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir. 2006)) (internal quotation omitted). Instead,
“[t]he question is whether the plaintiff appears
competent to litigate his own claims, given their degree of
difficulty, and this includes the tasks that normally attend
litigation: evidence gathering, preparing and responding to
motions and other court filings, and trial.”
his first motion, which the Court addressed only a month ago,
see (Docket #14), Plaintiff's request for
counsel must be denied because, notwithstanding his efforts
to obtain his own counsel, he has not presented any evidence
or argument showing that he cannot litigate this matter
competently on his own. First, Plaintiff says that his lack
of legal training will limit his ability to litigate this
case. (Docket #17 at 1). Plaintiff's lack of legal
training, while unfortunate, brings him in line with
practically every other prisoner litigating in this Court. On
its own, it is not a sufficient reason for appointing
counsel. Plaintiff's point seems to be that counsel would
do a better job than he, but the Seventh Circuit has rejected
this as a basis for appointment of counsel. Pruitt,
503 F.3d at 655.
the Court finds that, at least at this early stage in the
case, the issues presented are not so complex that Plaintiff
cannot be expected to adequately address them.
Plaintiff's only attempt to convince the Court otherwise
is to state that the case is “difficult, ”
without elaboration. (Docket #17 at 1). As a party seeking
relief in this Court, Plaintiff is expected to familiarize
himself with the substantive and procedural rules that will
bear on his case. Plaintiff's plea that he “is
entirely unaware as to what step must be taken next”
is, therefore, unpersuasive. Id. Likewise, the mere
fact that Defendants are represented by counsel is not a
reason why Plaintiff should be afforded representation.
Plaintiff has not submitted any evidence that he suffers from
cognitive, behavioral, or other limitations affecting his
ability to present his arguments in a cogent fashion. See
Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014).
His filings thus far suggest that he has no such limitation.
As such, the Court concludes that recruitment of counsel in
this case is not justified at this time, and will deny
Plaintiff's motion for appointment of counsel without
prejudice. The Court further notifies Plaintiff that, as will
be explained in the forthcoming trial scheduling order, the
Court generally does not consider requests for appointment of
counsel until, at earliest, the close of discovery.
Motion for Order Regarding Deductions for Filing Fee
other pending motion relates to the periodic deduction of
funds from his prison trust account. These deductions are
made pursuant to the Prison Litigation Reform Act, 28 U.S.C.
§ 1915(b)(2), which provides that “[a]fter payment
of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the
preceding month's income credited to the prisoner's
account. The agency having custody of the prisoner shall
forward payments from the prisoner's account to the clerk
of the court each time the amount in the account exceeds $10
until the filing fees are paid.” 28 U.S.C. §
1915(b)(2). An order to that effect was included in the
screening order in this case. (Docket #14 at 18).
complains that prison officials are withholding funds in a
manner inconsistent with the statute. (Docket #18 at 1).
According to him, they deduct 20 percent of each crediting
transaction to his prison trust account although the statute
requires deductions to be made on a monthly basis.
Id. Further, these officials reported to Plaintiff
that they will deduct 20 percent from each crediting
transaction until the amount of the deductions reaches $10,
at which time that amount will be sent to the Clerk of this
Court. Id. Plaintiff asks the Court to order this
practice to cease and for a refund of his erroneously
withheld funds. Id. at 2.
position rests on an understandable but mistaken reading of
the statute. The first sentence of Section 1915(b)(2)
unmistakably requires prison officials to deduct 20 percent
from all of a preceding month's income to pay
toward a filing fee. The statute does not limit this
deduction to only deposits that exceed $10. Any income to the
inmate, regardless of source, is available for the 20 percent
payments toward unpaid filing fees. Lucien v.
DeTella, 141 F.3d 773, 776 (7th Cir. 1998). The prison
officials in this case are ensuring that Plaintiff complies
with his obligations under the statute by taking 20 percent
from each deposit as it comes in. This is consistent with the
first sentence of Section 1915(b)(2).
second sentence of the statute is less clear. However, other
courts have heard and rejected Plaintiff's interpretation
of this sentence. As explained in Williams v.
Litscher, 115 F.Supp.2d 989, 991-93 (W.D. Wis. 2000),
modified on reconsideration, No. 00-cv-451, 2000 WL
34239347 (W.D. Wis. Dec. 1, 2000), the second sentence
addresses when payments should be forwarded to the court.
“Read literally, the second sentence of §
1915(b)(2) appears to direct prison officials to wait to send
a check to the court until the balance of the prisoner's
account exceeds $10. However, this cannot be what Congress
intended.” Id. at 991. Such a reading would
allow prisoners to avoid paying their filing fees simply by
ensuring that they never have more than $10 in their
accounts. Id. To avoid such an unreasonable result,
the court in Williams interpreted the second
sentence to allow prison officials to wait to send a check to
the court until a prisoner's accumulated deductions
exceed $10. Id. This view results in the payment of
a prisoner's federal filing fees no matter how small the
prisoner's paycheck may be. Id.
court, like others before it, finds the reasoning of
Williams persuasive. Smith v. Huibregtse,
151 F.Supp.2d 1040, 1042-43 (E.D. Wis. 2001); Flournoy v.
McKenzie, No. 14-cv-554-jdp, 2015 WL 4094357, at *2
(W.D. Wis. July 7, 2015). “The purpose of the second
sentence of Section 1915(b)(2) is not to make sure that
inmates have some balance in their accounts to spend freely;
it is to avoid the inefficiency of issuing a check for a few
cents every time an inmate receives a small deposit.”
Flournoy, 2015 WL 4094357, at *2. Consequently,
Plaintiff's motion regarding the monthly fee deductions
must be denied.
IT IS ORDERED that Plaintiff's second
motion for appointment of counsel (Docket #17) be and the