United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
plaintiff and prisoner Aldric Robinson is proceeding on a
claim that defendants Jacob Gripentrog and Brandon Mueller
failed to prevent Robinson from harming himself, in violation
of the Eighth Amendment. Two motions are now before the
court: (1) Robinson's motion to strike three of
defendants' affirmative defenses, Dkt. 13; and (2)
Robinson's motion for assistance in recruiting counsel,
Dkt. 15. For the reasons discussed below, I will: (1) grant
the motion to strike in part and deny it in part; and (2)
deny the request for counsel without prejudice.
Motion to strike
moves to strike three of defendants' affirmative
defenses: (1) failure to exhaust administrative remedies; (2)
qualified immunity; and (3) sovereign immunity.
do not oppose the motion as it applies to exhaustion, so I
will grant that part of the motion.
qualified immunity and sovereign immunity, Robinson seems to
be confused about the nature of his claims. He says that
qualified immunity does not apply because “no defendant
is being sued in his or her personal capacity, ” and
that sovereign immunity does not apply because it “does
not forbid suing state officials for damages in their
individual capacities.” Dkt. 13, at 1-2. But
“personal capacity” and “individual
capacity” are the same thing. Duane v. Lane,
959 F.2d 673, 675 (7th Cir. 1992). And because Robinson is
alleging that defendants personally violated his rights and
he is seeking damages against them, he is suing them in their
personal capacity. Kentucky v. Graham, 473 U.S. 159,
165 (1985). Under the doctrine of sovereign immunity, he
cannot sue state officials like defendants for damages in
their official capacity. Grayson v. Schuler, 666
F.3d 450, 451 (7th Cir. 2012). Because defendants were
entitled to raise defenses for both qualified immunity and
sovereign immunity, I will deny Robinson's motion to
strike those defenses.
Assistance in recruiting counsel
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 several requirements. Santiago v. Walls, 599
F.3d 749, 76061 (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 (7th Cir. 2007).
case, Robinson meets the first requirement because he is
proceeding in forma pauperis and he meets the second
requirement because he has submitted letters from three
lawyers who have declined to represent him. But he fails on
the third requirement because he has not shown that the case
is too difficult for him to litigate on his own.
case is still in its early stages, but Robinson's
complaint and other filings have been clear and easy to
follow. And Robinson himself admits that “this case is
not particularly vexing.” Dkt. 15, at 3. The law
governing his 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
asserts two reasons for needing counsel in this case: (1) the
prisoner who has been assisting him with the case is going to
be released from prison in June 2018; and (2) he will be need
discovery about “confidential and classified”
records about other prisoners to prove his claim and it is
unlikely that defendants will provide those to him. Both of
these concerns are premature.
the first concern, the general rule is that a litigant's
reliance on a fellow inmate for assistance in drafting legal
filings does not factor into a court's analysis when
deciding whether to assist with the recruitment of counsel.
Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir.
2014) (“[T]he fact that an inmate receives assistance
from a fellow prisoner should not factor into the decision
whether to recruit counsel.”). This is because
receiving assistance from a jailhouse lawyer is not proof
that a plaintiff is himself incapable of presenting his case.
Robinson does not allege that he is unable to read, write, or
understand his claims. It may be that Robinson will be able
to find another prisoner to help him. Or it may be that
Robinson will be able to litigate the case on his own. But
until Robinson tries, I have no basis for inferring that he
needs the assistance of counsel.
the second concern, Robinson does not clearly explain why he
believes he will need confidential records of other
prisoners. As explained in the screening order, his claim is
narrow. The sole question is whether defendants knew that
Robinson was suicidal, but failed to take reasonable steps to
help him. Collins v. Seeman, 462 F.3d 757, 760 (7th
Cir. 2006). It is not obvious why Robinson would need
confidential information to answer that question. In any