United States District Court, W.D. Wisconsin
PETER J. LONG, Plaintiff,
LINDA HARRING, et al., Defendants.
STEPHEN L. CROCKER, MAGISTRATE JUDGE.
se plaintiff Peter J. Long is proceeding with First
Amendment retaliation and failure-to-intervene claims against
four prison officials at the Thompson Correctional Center.
Long, who now is housed at the Oakhill Correctional
Institution, has filed two motions: (1) a motion asking the
court to recruit a volunteer attorney to assist him in
conducting depositions, dkts. 23-25; and (2) a motion to
amend the scheduling order to add time for discovery pending
the filing of summary judgment motions. Dkt. 29. I am denying
the motion to appoint counsel and granting the motion to
amend the scheduling order.
Motion to Appoint Counsel
starting point, there is no right to counsel in civil cases.
Olson v. Morgan, 750 F.3d 708, 711 (7th
Cir. 2014). A party who wants assistance from the court in
recruiting counsel must meet several requirements.
Santiago v. Walls, 599 F.3d 749, 760-61
(7th Cir. 2010). First, he must show that he is
unable to afford counsel. Long has not done this. To show
that he cannot afford counsel, Long must submit an affidavit
of indigency, along with a copy of his trust account
statement, to show that he lacks the means to afford counsel.
Long must show that he has made reasonable efforts on his own
to find a lawyer to represent him. Long has
satisfied this requirement, by submitting several letters
from local attorneys who declined to represent him in this
even if Long were to meet both of these requirements, I would
still deny his request. Court assistance in recruiting
counsel is appropriate only when the plaintiff demonstrates
that he has one of those relatively few cases in which it
appears from the record that the legal and factual difficulty
of the case exceeds his ability to prosecute it. Pruitt
v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). The
question is not simply whether a lawyer might do a better
argues that the court should appoint a lawyer to represent
him because (1) his case is legally and factually complex,
(2) he needs to depose the defendants and four TCC sergeants
who were witnesses, (3) the defendants and witnesses are
either located at TCC or retired, making it logistically
impossible for him to interview them, and (4) he has no legal
training or experience. These reasons are not persuasive.
Contrary to Long's assertions, this case is not
particularly complex. As explained in this court's recent
order in which I revised the leave to proceed order, dkt. 28,
Long alleges that defendant Linda Harring retaliated against
him in a number of ways for filing inmate complaints against
her and other TCC staff beginning with his arrival at TCC in
September 2015, and that the remaining defendants failed to
intervene to stop Harring's retaliation. I dismissed two
of the defendants, which reduces the number of defendants to
four. To prove his claim against Harring, Long will have to
show that (1) Long engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and (3) the
First Amendment activity was at least a motivating factor in
Harring's decision to take the retaliatory action.
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
this third element will require Long to show that Harring was
aware that Long had filed inmate complaints against her and
other TCC staff, and also to produce some evidence from which
a jury reasonably could infer that Harring's alleged
retaliatory actions were motivated by those complaints. To
prove his failure-to-intervene against the remaining
defendants, Long will need to show that (1) they were aware
of Harring's retaliation and (2) they had a realistic
opportunity to intervene to prevent it from occurring.
Lewis v. Downey, 581 F.3d 467, 472 (7th
of Long's claims require expert testimony or involve
complicated fact patterns. Indeed, Long should be able to
establish some of these elements through his own testimony
and documents. As for evidence in the possession of
defendants, Long has shown that he understands how to use
interrogatories and requests for production to obtain this
evidence. Overall, Long's submissions in this case and
others before me show that he is well-organized, writes and
thinks logically and has a basic working knowledge of the
Federal Rules of Civil Procedure. Based on the quality of his
submissions, I am satisfied that Long is able to litigate a
case of this nature.
understand that Long is asking for a lawyer only to help him
conduct depositions. This begs the questions whether
depositions are necessary, affordable or advisable. Long
asserts that he needs to depose the defendants and certain
witnesses because the assistant attorney general representing
the defendants has failed to cooperate with his discovery
demands and has unduly narrowed the scope of his retaliation
claim. Dec. of Peter Long, dkt. 25, at ¶¶9, 10, 14.
In my December 5 order, I clarified the scope of this case
(by agreeing with Long's position) and I ordered
defendants to answer many of the interrogatories and document
requests to which they had objected. In light of that order,
Long may find it unnecessary to conduct depositions.
more importantly, I question whether Long has the money he
will need to conduct depositions. Depositions are expensive
and time-consuming. For each witness Long wants to depose,
Long must comply with F. R. Civ. Pro. 45, including
requesting the court to issue a subpoena, hiring a process
server to serve it and then providing to the witness payment
of one day's attendance at the deposition ($40) and
mileage (53¢/mile). Long also must hire a court reporter
to record and transcribe each deposition. The costs add up in
a hurry, which is why pro se parties proceeding in forma
pauperis rarely use depositions. Long would be well-advised
to continue to use interrogatories, requests for production
and requests for admissions to obtain the evidence he seeks.
non-party witnesses, I understand that Long has been
transferred to another institution and is unable to speak
directly to those witnesses. However, he may obtain
statements from these witnesses by writing to them directly
and asking that he or she prepare either a notarized
affidavit or a declaration containing the necessary
information. If the document is not notarized, then it must
contain the following statement at the end of the document:
declare under penalty of perjury that the foregoing ...