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LaBrec v. Meeker

United States District Court, W.D. Wisconsin

March 6, 2018

MATTHEW LABREC, Plaintiff,
v.
C.O. DUSTIN MEEKER, C.O. HANSEN, C.O. II KORDUCKI, SGT. PHILLIPS, LT. JULSON, and RN JESSE BEAVER, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se plaintiff and prisoner Matthew LaBrec is proceeding on claims under the Eighth Amendment and state law that he cut himself because several staff members at the Columbia Correctional Institution knew that he was suicidal but failed to do anything to help him. Three motions filed by LaBrec are before the court: (1) a motion to substitute a new defendant for Dustin Meeker, who died in 2017, Dkt. 20; (2) a motion for assistance in recruiting counsel, Dkt. 21; and (3) a motion for a mental health evaluation, Dkt. 29. For the reasons stated below, I will deny the first two motions without prejudice and the third motion outright.

         ANALYSIS

         A. Motion for substitution

         In its acceptance of service of form, the Wisconsin Department of Justice indicated that it was not accepting service for defendant Dustin Meeker because he is deceased. Dkt. 10.[1] Magistrate Judge Peter Oppeneer construed the department's form as a suggestion of death under Rule 25(a) of the Federal Rules of Civil Procedure and gave LaBrec 90 days to file a motion to substitute Meeker's successor or representative.[2] In response, LaBrec filed a motion for substitution, but he did not identify the proper party to substitute because the department did not identify who it was and he didn't know. Dkt. 20.

         As it turns out, it was a mistake for the magistrate judge to set a 90-day deadline for substitution. In Atkins v. City of Chicago, 547 F.3d 869, 870-74 (7th Cir. 2008), the court held that the party filing the suggestion of death has the burden to both identify the proper party to be substituted and serve that party with the notice. Until that happens, the 90-day deadline isn't triggered. Id. at 874 (“[N]othing will suffice to start the 90-day clock running except service on whoever is identified as the decedent's representative or successor.”).

         Accordingly, I will deny LaBrec's motion for substitution and give defendants an opportunity to identify the proper party to be substituted and then to serve the notice on that party. The proper party is “the decedent's successors (if his estate has been distributed) or personal representative ([if] it has not been).” Id. at 873. Once that occurs, LaBrec will have 90 days to file a new motion for substitution.

         B. Motion for assistance in recruiting counsel

         A pro se litigant does not have a right to counsel in a civil case, Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014), but a district court has discretion to assist pro se litigants in finding a lawyer to represent them. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007). A party who wants assistance from the court in recruiting counsel must meet three requirements. Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010). First, he must show that he is unable to afford to hire his own lawyer. 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”). Second, he must show that he made reasonable efforts on his own to find a lawyer to represent him. Jackson v. County of McLean, 953 F.2d 1070 (7th Cir. 1992). Finally, he must show that the legal and factual difficulty of the case exceeds his ability to prosecute it. Pruitt, 503 F.3d at 654-55.

         LaBrec is indigent and he has shown that three lawyers denied his requests to represent him. But he has not shown that the legal and factual difficulty of the case exceeds his abilities. LaBrec's filings with the court thus far show that he is intelligent, understands law and procedure, can explain his version of events in a complaint, and file motions on different issues. He has even shown that he is capable of gathering evidence; he has filed several declarations from other prisoners that he says support his allegations.

         As for the difficulty of the case, LaBrec is proceeding on a single theory that defendants failed to protect him when he told them that he was suicidal. The law on such a claim is well established and was explained to him in the screening order. His primary task at summary judgment or trial will be to explain what happened to him and support his version of events with any corroborating evidence, something he has already started doing, as discussed above.

         LaBrec says he needs a lawyer for the following reasons: (1) he does not know how to identify the proper party to substitute for defendant Meeker; (2) he needs a psychiatric evaluation to prove his claim; (3) he has been diagnosed with various mental illnesses; (4) he has limited access to the law library; (5) he has limited knowledge of the law; and (6) he is no longer receiving the assistance of more knowledgeable prisoners. At this point in the case, none of these reasons are persuasive.

         The first ground-difficulty in identifying a proper party to substitute-is moot now that I have determined that defendants have the burden of identifying that party.

         The second ground-that he needs a psychiatric evaluation to prove his claim-is simply incorrect. I am not aware of any authority in which a court held that a prisoner must prove that he has a particular mental health condition ...


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