United States District Court, E.D. Wisconsin
AERION C. KING, Plaintiff,
DR. GARY ANKARLO, et al., Defendants.
ADELMAN, UNITED STATES DISTRICT JUDGE
Aerion C. King, who is representing himself, filed a lawsuit
under 42 U.S.C. § 1983 in February 2017. He is
proceeding on Eighth Amendment claims against numerous
defendants for failure to protect and deliberate
indifference. Plaintiff has filed a motion for a preliminary
injunction, Docket No. 35, as well as two motion to appoint
counsel, Docket Nos. 36 and 39, and a motion for an extension
of time to complete discovery, Docket No. 42. I will address
each of plaintiff's motions.
motion for a preliminary injunction, plaintiff asks to be
transferred to a different institution, specifically a mental
health facility. He states that staying at Green Bay
Correctional Institution (GBCI), which is not a mental health
facility, poses a danger to his safety and his life. Standard
intervention at GBCI does not control his self-destructive
and self-harming episodes. Docket No. 35 at 2-5.
Prison Litigation Reform Act allows inmates to seek
preliminary injunctive relief. 18 U.S.C. § 3626(a)(2). A
preliminary injunction is an extraordinary remedy and may
only be awarded upon a clear showing that: (1) plaintiff has
at least a reasonable likelihood of success on the merits,
(2) he has no adequate remedy at law and will otherwise be
irreparably harmed, (3) the threatened injury to plaintiff
outweighs the threated harm the preliminary injunction may
cause the defendants, (4) and granting the preliminary
injunction will not disserve the public. Godinez v.
Lane, 733 F.2d 1250, 1257 (7th Cir. 1984).
plaintiff filed his lawsuit, he also filed a motion for a
preliminary injunction. Docket No. 5. A different district
judge, the Honorable J.P. Stadtmueller, screened
plaintiff's complaint and ruled on his motion for a
preliminary injunction, considering the supplemental
materials plaintiff filed in the interim. Docket No. 23. His
first motion for a preliminary injunction raised nearly
identical concerns. See Docket No. 5. While time has
passed, and plaintiff has engaged in more self-harm in that
time, the substance of his motion has not changed. As Judge
Stadtmueller explained, courts are generally not to interfere
with how prison administrators operate prisons by issuing a
preliminary injunction, see 18 U.S.C. §
3626(a)(2), and courts lack expertise in how a prison should
treat and manage inmates with mental health disorders.
See Docket No. 23 at 9-10. All plaintiff has offered
is his own opinion on how prison officials should incarcerate
him and treat his mental health disorder, and this is not
enough to allow me to issue “[p]reliminary injunctive
relief [that is] narrowly drawn, extend[ing] no further than
necessary to correct the harm the court finds requires
preliminary relief, and [is] the least intrusive means
necessary to correct that harm.” 18 U.S.C. §
and as before, plaintiff has not satisfied the preliminary
injunction standards because he has not submitted anything
that shows a likelihood of success on the merits. Just as the
possibility that prison staff might be deliberately
indifferent to plaintiff's risk of self-harm was not
enough to issue a preliminary injunction previously, it is
not enough (standing alone) to issue a preliminary injunction
now. I will therefore deny his motion.
Motion to Appoint Counsel
has requested that I appoint him an attorney, docket no. 36
and 42, and I have discretion to recruit counsel to represent
a litigant who is unable to afford one in a civil case,
Navejar v. Iyiola, 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).
Once a plaintiff demonstrates he has made a reasonable
attempt to secure counsel on his own, I examine
“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 v.
Mote, 503 F.3d 647, 655 (7th Cir. 2007)). This inquiry
focuses not only on a plaintiff's ability to try his
case, but also includes other "tasks that normally
attend litigation" such as "evidence
gathering" and "preparing and responding to
submission demonstrates that he has made the requisite
reasonable effort to find his own attorney. He states that he
receives the help of another inmate, who is located in a
different part of GBCI, making communication difficult, and
that his mental health issues impair his ability to present
his case on his own. However, plaintiff's access to his
jailhouse lawyer is not the operative question; instead, the
question is whether plaintiff can himself competently present
the case. See Henderson v. Ghosh, 755 F.3d 559, 565
(7th Cir. 2014). It seems that nearly all of plaintiff's
submissions have been authored by his jailhouse lawyer. While
I understand that plaintiff's mental illness may impair
his ability to present his case, I cannot make an accurate
finding without more information about plaintiff's own
ability to present his case. Furthermore, I am granting his
motion for an extension of time, and plaintiff is free to
request more time to meet other deadlines as he needs to.
Therefore, I will deny his motions without prejudice.
Motion for Extension of Time
plaintiff has requested that I grant him an extension of time
to engage in discovery. I will grant this motion. The
discovery deadline is now May 1, 2018. To accommodate this
extension, I will also extend the dispositive motion deadline
to June 1, 2018.
IT IS ORDERED that the plaintiff's motion for a
preliminary injunction (Docket No. 35) is
IS FURTHER ORDERED that plaintiff's motions to
appoint counsel (Docket Nos. 36 and 39) ...