United States District Court, W.D. Wisconsin
GABRIEL G. RAMIREZ, Plaintiff,
SHERIFF OF DANE COUNTY, et al., Defendants.
OPINION AND ORDER
STEPHEN L. CROCKER, MAGISTRATE JUDGE.
se plaintiff Gabriel G. Ramirez is proceeding in this
lawsuit on his claim that defendants Deputy L. Kranski,
Deputy Sween, and Jane and John Doe deputies used excessive
force claim against him in violation of the Fourteenth
Amendment. The parties are in the process of briefing
defendants' motion for summary judgment, but in the
meantime Ramirez has filed three motions that this order
resolves. Specifically, on December 4, 2017, Ramirez filed a
motion opposing defendants' request for an oral
deposition and requesting a stay (dkt. 39). Next although
Ramirez's deadline to file his opposition materials was
January 4, 2018, on January 8, 2018, Ramirez instead filed
two motions requesting assistance in recruiting counsel (dkt.
41) and an extension of time to file his summary judgment
opposition materials (dkt. 42). For the following reasons, I
am denying Ramirez's motions in opposition to the oral
deposition and request for assistance in recruiting counsel,
but I am granting his request for additional time to respond
to defendants' motion for summary judgment. Finally, I am
directing Ramirez to show cause as to why the presiding judge
should not dismiss the Doe defendants from this lawsuit.
opposing deposition and to modify the scheduling order (dkt.
requests that the court deny defendants' request to take
his deposition, and asks the court to suspend all deadlines
set forth in the Pretrial Conference Order (dkt. 22) pending
a “civil rights or criminal investigation” of the
defendant. I am denying both requests.
the opposition to the deposition is moot. The court granted
defendants' motion on November 1, 2017, and defendants
conducted the deposition on November 28, 2017, without
Ramirez objecting. Second, Ramirez has not provided a
persuasive reason to suspend the deadlines in this lawsuit.
Ramirez explains that he wrote letters to both the Madison
Police Department and the Federal Bureau of Investigation, in
which he requested that these entities investigate the
defendants' conduct from November 12, 2014, and would
like to stay this matter pending the outcome of those
investigations. However, because none of his filings suggest
that anyone ever actually opened an investigation, there is
no reason to stop these proceedings.
for Assistance in Recruiting Counsel (dkt. 41)
motion, Ramirez explains that he cannot afford to hire
counsel, he suffers from a number of mental illnesses
including bipolar, depression, and anxiety, and that he has
been relying on another inmate to help him with his filings.
starting point with Ramirez's request is that there is no
right to counsel in civil cases. Olson v. Morgan,
750 F.3d 708, 711 (7th Cir. 2014). Rather, courts have
discretion to grant motions for assistance in recruiting
counsel where a party meets several requirements.
Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir.
2010). Ramirez has established both that he is unable to
afford counsel and that he has made reasonable efforts to
find a lawyer on his own but has been unsuccessful, but I
will not grant his request at this point. Indeed, it still is
not apparent that this is one of those relatively few cases
in which it appears from the record that the legal and
factual difficulty of the case exceeds the plaintiff's
ability to prosecute it. Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007). The operative question is not
whether a lawyer will do a better job than him -- that is
almost always the case.
lawsuit is about whether the defendants Kranski, Sween and
the Doe defendants used excessive force against him on
November 12, 2014. To succeed, Ramirez has the burden show
“that the force purposely or knowingly used against him
was objectively unreasonable, ” based on the following
factors: “the relationship between the need for the use
of force and the amount of force used; the extent of the
plaintiff's injury; any effort made by the officer to
temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by
the officer; and whether the plaintiff was actively
resisting.” Kingsley v. Hendrickson,
135 S.Ct. 2466, 2473 (2015). Thus Ramirez's burden of
proof will include submitting evidence about the incident in
question - which will involve his own and witness memory -
and arguing the factors under Kingsley. I am not
persuaded that Ramirez needs an attorney to complete these
one, at this stage Ramirez's obligation is to file
opposition materials to defendants' pending motion for
summary judgment, and his efforts to meet that obligation
pass muster. For one, his request for an extension, by
itself, does not convince me that he needs an attorney, as
this is a common request for all parties, including those
with lawyers. Next, Ramirez has submitted part of his
opposition materials, in which he sets forth defendants'
proposed facts and his grounds for disputing those facts, and
he cites to case law related to the excessive force standard.
While I have conducted only a cursory review of the substance
that submission, this much is clear: Ramirez can write
articulately, he can cite to and analyze the relevant facts
under the proper standard, and he can comply with the Federal
Rules of Civil Procedure and this court's procedures for
responding to motions for summary judgment. (See
apparent reliance on the assistance of another inmate to
craft these filings does not militate in favor of granting
him counsel; rather, it demonstrates his ability to litigate
it without one. That said, once the parties complete
briefing, or if this case proceeds to trial, the presiding
judge will, if necessary, sua sponte recruit counsel
on Ramirez's behalf if it becomes apparent that the legal
and factual difficulties of this case exceed Ramirez's
ability to litigate it further without an attorney. As such,
I am denying Ramirez's motion without prejudice.
for Extension of Time (dkt. 42)
requests an additional 30 days to respond to defendants'
motion for summary judgment. While he certainly should have
submitted this request prior to the January 4, 2018,
deadline, he explains that he did not have access to his
records related to this lawsuit between March and September
of 2017, and defendants don't oppose his request. Out of
deference to Ramirez's pro se status and his
demonstrated attempts to respond to defendants' motion
thus far, I will modify the deadlines for defendants'
motion for summary judgment as follows: Ramirez's
opposition is due February 12, 2018, and defendants'
reply is due February 22, 2018.