United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE.
Kevin Brian Mitchell filed this lawsuit pursuant to 42 U.S.C.
§ 1983, alleging that his civil rights were violated.
Presently before the court is Mitchell's motion to
appoint counsel, motion to amend and supplement the
complaint, motion to compel, and motion for sanctions. The
court will address each motion in turn.
Motion to Appoint Counsel
has filed a motion to appoint counsel. Having given
Mitchell's request further consideration, I now conclude
that it should be denied. Civil litigants do not have a
constitutional or statutory right to appointed counsel.
Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007)
(en banc); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th
Cir. 1995). Yet, district courts have discretion to recruit
attorneys to represent indigent parties in appropriate cases
pursuant to 28 U.S.C. § 1915(e)(1). As a threshold
matter, litigants must make a reasonable attempt to secure
private counsel on their own. Id. at 654. Once this
threshold burden has been met, the Court must address the
following question: given the difficulty of the case, does
this plaintiff appear competent to litigate it
himself?” Id. at 654-55 (citing Farmer v.
Haas, 990 F.2d 319, 321-22 (7th Cir. 1993)). Noticeably
absent from the list of factors Pruitt instructs
district courts to consider in deciding such motions, but
presumably not wholly irrelevant, are the merits and
substance of the plaintiff's claim.
the Pruitt standard, Mitchell has failed to
demonstrate a need for court-recruited counsel. Here,
Mitchell has not alleged that he is incompetent and has
provided no specific evidence to support a finding that he
lacks the competency to represent himself. There are no
“fixed requirements” to determine whether a
plaintiff is competent to litigate his own case. Id.
at 655. A district court may consider “the
plaintiff's literacy, communication skills, educational
level, and litigation experience.” Id.
Information regarding “the plaintiff's intellectual
capacity and psychological history” is also relevant.
Id. Mitchell asserts that he has a limited knowledge
of the law and has received help from “jail house
lawyers.” ECF No. 24 at 1. Despite these arguments,
this Court finds Mitchell competent to proceed pro
se in this case.
not enough to say that a lawyer might do a better job
handling the case, since that would seem almost always to be
the case. Rather, the question is whether the plaintiff would
be unable to coherently present the case to a judge or jury.
Here, there is no indication in the record that
Mitchell's education or intelligence is limited. Mitchell
has failed to provide the Court with any information about
his general competence. He has also revealed an ability to
litigate on his own behalf. His filings are neatly typed and
his arguments are cogent. In short, there is nothing in the
record to suggest that Mitchell does not have the same
competence to represent himself as the vast number of other
pro se litigants who cannot afford to hire an
attorney and are unable to convince one to take their case on
a contingent fee basis. In addition, this case is not
complex. Mitchell's claim appears to be a straightforward
Eighth Amendment claim. Mitchell has knowledge of many of the
relevant facts concerning his claim. I conclude that the
difficulty of this case-both factually and legally-does not
exceed Mitchell's capacity to represent himself.
Accordingly, at this time, Mitchell's motion to appoint
counsel will be denied without prejudice. The Court will give
further consideration to Mitchell's request as the case
Motion to Amend the Complaint
has also filed a motion to amend his complaint to substitute
the proper defendant for John Doe and to name the actual
individual who put him in a headlock. Mitchell's motion,
however, fails to comply with the local rule governing
amendment of pleadings. Civil L.R. 15(b) states:
A motion to amend a pleading must state specifically what
changes are sought by the proposed amendments. The proposed
amended pleadings must be filed as an attachment to the
motion to amend.
has failed to file a proposed amended complaint as an
attachment to his motion. In other words, his motion only
states a desire to amend the complaint; it fails to provide a
copy of the proposed complaint he seeks to file. For this
reason, Mitchell's motion will be denied. The denial,
however, is without prejudice. To comply with the local
rules, Mitchell need only take his original complaint and
substitute the new defendant's name in all of the places
he references John Doe and name the proper defendant who put
him in a headlock. Then he can refile this motion with the
proposed amended complaint. As the record now stands,
however, Mitchell's motion to amend and supplement the
complaint will be denied.
Motions to Compel and for Sanctions
also filed a motion to compel and a motion to hold
Defendants, Defendants' attorney, and WCI in contempt and
to sanction them. The Court directs Defendants to respond to
Mitchell's motions on or before May 4, 2018. The Court
will extend the discovery deadline by thirty days, until June
7, 2018, and extend the dispositive motion deadline until
July 9, 2018.
IS THEREFORE ORDERED that Mitchell's motion to
appoint counsel (ECF No. 24) is DENIED without
IS FURTHER ORDERED that Mitchell's motion to
amend and supplement the complaint (ECF No. ...