United States District Court, E.D. Wisconsin
JOSHUA P. BRAITHWAITE, Plaintiff,
MITCHELL BILLE, GERRAD KIBBEL, RYAN HINTZ, CO KEVIN BENSON, and ADAM MARTIN, Defendants.
ORDER DENYING WITHOUT PREJUDICE THE PLAINTIFF'S
MOTION FOR PROTECTIVE ORDER (DKT. NO. 18) AND DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
PAMELA PEPPER United States District Judge
Joshua Braithwaite is a Wisconsin state prisoner representing
himself. He filed this lawsuit alleging that the defendants
failed to prevent him from harming himself, in violation of
the Eighth Amendment to the United States Constitution. Dkt.
No. 1. The plaintiff has filed a motion for a protective
order, dkt. no. 18, and a motion to appoint counsel, dkt. no.
20. The court denies both motions.
plaintiff has asked the court to issue a protective order
limiting the defendants' access to his medical and
psychological records. Dkt. No. 18. He requests that the
court limit the defendants' access to his records such
that they can only access those portions of his records that
are relevant to his claim. Id. Along with his
motion, the plaintiff includes an Authorization for
Disclosure of Medical Information that the defendants
requested him to sign.
No. 18-1 at 2-3.
Rule of Civil Procedure 26 states in relevant part:
A party or any person from whom discovery is sought may move
for a protective order in the court where the action is
pending[.] … The motion must include a certification
that the movant has in good faith conferred or attempted to
confer with other affected parties in an effort to resolve
the dispute without court action. The court may, for good
cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
Fed. R. Civ. P. 26(c)(1). The plaintiff does not state that
he conferred with the defendants before filing his motion. He
may satisfy that requirement by writing to the defendants.
But because the plaintiff has not conferred with the
defendants in an attempt to resolve this issue without
involving the court, the court will deny his motion for a
protective order without prejudice. This means he can file
the motion again later if he is not able to work out his
concerns with counsel for the defendants.
plaintiff also has filed a motion to appoint counsel. Dkt.
No. 20. He states that he cannot afford to hire an attorney
and that his imprisonment will greatly limit his ability to
litigate. Id. at 1. The plaintiff also states that
this case involves complex issues that will require
significant research and investigation outside of his reach.
Id. He asserts that he has limited access to the law
library and limited knowledge of the law. Id.
civil case, the court has discretion to decide whether 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).
First, however, the person has to make a reasonable effort to
hire private counsel on his own. Pruitt v. Mote, 503
F.3d 647, 653 (7th Cir. 2007). After the plaintiff makes that
reasonable attempt to hire counsel, the court then must
decide “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). To decide that, 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.”
the plaintiff asserts that he attempted to find an attorney
on his own by contacting eleven attorneys. Dkt. No. 20 at 2.
He attached to his motion letters from two of the attorneys.
Dkt. No. 20-1. In one of the letters, the attorney said that
he would consider representing the plaintiff if the plaintiff
would provide him with a complete set of his Health Service
Unit records and documentary evidence that the plaintiff has
exhausted his administrative remedies. Id. at 2. The
plaintiff does not explain whether he provided the attorney
with the requested information. Because the plaintiff did not
state in his motion whether he'd provided the attorney
with the documents (or even whether he was able to do so),
the court cannot conclude that he has made a reasonable
attempt to find an attorney on his own.
the plaintiff had made a reasonable attempt to find a lawyer
on his own, on October 17, 2017, the plaintiff filed with the
court the discovery requests that he had submitted to the
defendants. Dkt. No. 22. These requests, which include
requests for production of documents, interrogatories and
requests for admissions, show that the plaintiff has the
capacity to conduct discovery and engage in pretrial motion
practice on his own. The court will deny without prejudice
the plaintiffs motion to appoint counsel without prejudice;
if there comes a time that he can (a) demonstrate that he has
made a reasonable effort to find counsel on his own, and (b)
demonstrate that the case has become too complex for him to
handle, he may file another motion.
court DENIES WITHOUT PREJUDICE the
plaintiffs motion for protective order. Dkt. No. 18
court DENIES WITHOUT PREJUDICE the
plaintiffs motion to ...