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Borchardt v. Walker

United States District Court, E.D. Wisconsin

March 5, 2018

DIANE BORCHARDT, Petitioner,
v.
SCOTT WALKER, JEFFERSON COUNTY, DALINDA LARSON AND JOHN ULLSVIK, Respondents.

         ORDER DENYING AS MOOT PETITIONER'S FIRST MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 3), DENYING AS INAPPLICABLE PETITIONER'S SECOND AND THIRD MOTIONS TO PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NOS. 5 AND 6), DENYING WITHOUT PREJUDICE MOTION TO APPOINT COUNSEL (DKT. NO. 2), AND REQUIRING THAT, BY THE END OF THE DAY ON APRIL 16, 2018, THE PETITIONER SHALL FILE AN AMENDED PETITION ON THE REQUIRED FORM AND PROVIDE THE COURT WITH EVIDENCE TO SUPPORT HER CLAIM OF ACTUAL INNOCENCE, OR FACE DISMISSAL OF HER CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         The petitioner filed a petition for writ of habeas corpus under 28 U.S.C. §2241, challenging her 1994 conviction in Jefferson County Circuit Court. Dkt. No. 1. Because the petitioner did not file her petition on the proper form, and because she did not provide any evidence in support of her claim of actual innocence, the court will allow the petitioner to file an amended petition, on the proper form, by the end of the day on April 16, 2018. If the petitioner does not file an amended petition on the proper form, supported by evidence of actual innocence, by the end of the day on April 16, 2018, the court will dismiss her petition.

         I. Motions for Leave to Proceed Without Prepayment of the Filing Fee

         The petitioner filed her complaint on the form that prisoners use when they are bringing a civil lawsuit to sue for money damages or injunctive relief. She names as defendants Scott Walker, Jefferson County, former district attorney Linda Larson and former Jefferson County Circuit Judge John Ullsvick. Dkt. No. 1 at 1. At the end of the pleading, the plaintiff asks for money damages. Id. at 9. But the plaintiff writes in the handwritten part of the pleading that she is seeking habeas corpus relief under 28 U.S.C. §2241, and that she is asking to be released from prison because she is innocent. Id. at 3, 8. It appears that the petitioner is trying to obtain two different kinds of relief that can't be sought in the same case.

         “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Section 2241 of Title 28 says that a person cannot obtain a writ of habeas corpus unless that person is in custody in violation of the Constitution, laws or treaties of the United States. Section 2254 of that same title says that a federal court may grant a writ of habeas corpus to a person who is in state custody, if that person shows that she is in state custody in violation of the Constitution, laws or treaties of the United States. The Supreme Court has held that a writ of habeas corpus provides the sole remedy for a prisoner who is challenging the legality of his imprisonment and seeking release. Id. at 500. It is available to any person who claims that she is “being unlawfully subjected to physical restraint.” Id. at 486.

         In contrast, 42 U.S.C. §1983 allows a person who believes that a state actor has violated her constitutional rights to sue that person for money damages. Section 1983 allows a prisoner to sue for damages or injunctive relief for constitutional violations they suffered before going into custody, or while in custody. Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999).

         It makes a difference which of these things the plaintiff is trying to do for many reasons. One of those reasons is the filing fee. The filing fee for filing a habeas petition is $5. The filing fee for filing a §1983 complaint is $350. The petitioner has filed three motions for leave to proceed without prepayment of the filing fee. Dkt. Nos. 3, 5 and 6. The first motion is on the form that a habeas petitioner files for waiver of the $5 habeas filing fee. Dkt. No. 3. The second and third motions are on the form that a prisoner files when seeking waiver of the $350 civil lawsuit filing fee. Dkt. Nos. 5 and 6.

         For the purposes of this order, the court will assume that what the petitioner is asking for in this filing is release from prison. That means that the court will assume that she meant to file a habeas petition under 28 U.S.C. §§2241 and 2254. That means that she owes a $5 filing fee. Despite the petitioner having filed a motion to waive the $5 filing fee (dkt. no. 3), the court received that fee from the petitioner on April 10, 2017. So, the court will deny as moot the petitioner's motion to waive the $5 habeas filing fee, and will deny as inapplicable the two motions to waive the $350 §1983 filing fee.

         II. Motion to Appoint Counsel

         The petitioner has filed a motion asking the court to appoint counsel to represent her. Dkt. No. 2. In support of this motion, she says that she does not have any legal background, that she is indigent, and that she “has tried to hire counsel and has been turned down time and time again.” Id.

         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). The court does not have money to hire lawyers for civil plaintiffs. Because there are not enough volunteer lawyers to represent every civil party who asks for one, the court must carefully consider each request to determine when to appoint counsel. In order for a court to consider appointing counsel to represent a civil party, the party must first make reasonable efforts to hire private counsel on her own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In this district, a party can satisfy this requirement by providing the court with: (1) the attorneys' names, (2) the addresses, (3) the date and way the plaintiff attempted to contact them, and (4) the attorneys' responses.

         Once the party demonstrates that she has made reasonable attempts to hire counsel on her own, the court 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). The court looks not only at the party's ability to try her case, but also at her ability to perform other “tasks that normally attend litigation, ” such as “evidence gathering” and “preparing and responding to motions.” Id. “[D]eciding whether to recruit counsel ‘is a difficult decision: Almost everyone would benefit from having a lawyer, but there are too many indigent litigants and too few lawyers willing and able to volunteer for these cases.'” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)).

         Here, the petitioner has not provided the court with any information regarding how many attorneys she has contacted, or who they were, or when she tried to contact them. She must provide that information first, before the court will consider appointing counsel for her. Even if she had provided that information, the court could not conclude at this stage that the plaintiff cannot present her claims on her own. Although the plaintiff has asked for two forms of relief that cannot be combined in the same case, she has clearly laid out why she believes that her conviction is unlawful. The court ...


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