United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
plaintiff Carlos Lindsey, a state prisoner incarcerated at
the Wisconsin Secure Program Facility (WSPF), is proceeding
on an Eighth Amendment deliberate indifference claim against
defendant Laverne Wallace, a correctional officer at WSPF.
Lindsey alleges that he told Wallace that he was suicidal and
that he needed to see someone for psychological services, but
Wallace taunted him and told him that he would not call
anyone. Lindsey swallowed 19 pills of hydroxyzine, and a
doctor at an off-site hospital diagnosed him with acute
kidney failure. Wallace moved for summary judgment, and I
denied his motion. Dkt. 48.
motions are pending before the court: (1) Lindsey's
motion for appointment of counsel, Dkt. 52; (2) Lindsey's
motion for issuance of a subpoena for Larry Primmer,
Wallace's supervisor, Dkt. 49; (3) Lindsey's motion
for issuance of a subpoena for Maria Lemieux, a psychological
associate at WSPF, Dkt. 50; (4) Lindsey's motion for
issuance of a subpoena for Christine Langemo, the doctor who
diagnosed him with acute kidney failure, Dkt. 51; and (5)
Wallace's motion for leave to depose Lindsey, Dkt. 54. I
will grant Lindsey's motion for assistance in recruiting
counsel. I will grant Wallace's motion to depose Lindsey,
provided that Wallace deposes Lindsey after the court
attempts to recruit counsel for him. I will deny all other
motions without prejudice.
Lindsey's motion for appointment of counsel
in civil cases do not have a constitutional right to counsel,
and the court has only discretion to assist in recruiting
counsel who may be willing to serve without compensation.
See 28 U.S.C. § 1915(e)(1); Pruitt v.
Mote, 503 F.3d 647, 653-54, 656 (7th Cir. 2007) (en
banc). Before assisting in recruiting counsel, this court
generally requires a pro se litigant to satisfy two
requirements. First, the litigant must show that he has made
reasonable attempts to recruit counsel on his own.
Pruitt, 503 F.3d at 654. Lindsey identifies three
lawyers he attempted to recruit and states that the lawyers
have not written him back, Dkt. 52, ¶ 8, so he satisfies
the first requirement.
once the pro se litigant shows that he has made some
reasonable attempts to recruit counsel, the court “must
examine whether the difficulty of the case-factually and
legally-exceeds” his abilities to litigate his claims.
Perez v. Fenoglio, 792 F.3d 768, 784 (7th Cir.
2015). The inquiry into a litigant's abilities to handle
his own case is a practical one, made in light of
“whatever relevant evidence” that is available.
Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir.
2014). Courts generally consider the litigant's
“literacy, communication skills, educational level, and
litigation experience” in light of the complexities of
the case. Pruitt, 503 F.3d at 655. Cases that
involve complex medical evidence are often difficult for pro
se litigants. Santiago v. Walls, 599 F.3d 749, 761
(7th Cir. 2010). Litigating the state of mind of a defendant
adds further complexity. Id. (discussing
Swofford v. Mandrell, 969 F.2d 547 (7th Cir. 1992)
and noting that when prison officials allegedly failed to
come to the plaintiff's aid when he was assaulted turned
on witness credibility and that the plaintiff's inability
to investigate crucial facts warranted recruitment of
counsel). Recruiting counsel is discretionary, but a district
court must ensure that the pro se litigant suffers no
prejudice from an inability to investigate facts or to
present key witnesses. Id. at 566. Prejudice in this
context means “a reasonable likelihood that the
presence of counsel would have made a difference in the
outcome of the litigation.” Henderson, 755
F.3d at 566. The court must consider the litigant's
intellectual capacity and psychological history if they are
known. Santiago, 599 F.3d at 762.
conclude that assisting Lindsey in recruiting counsel is
appropriate for three reasons. First, Lindsey's mental
health raises doubt whether he is capable of litigating this
case. Lindsey attempted suicide by overdosing, as evidenced
by the video recording of his cell. See Dkt. 36 Ex.
103. Lindsey informed the court in a declaration that he
suffered from a long list of mental conditions, some of which
caused visual and auditory hallucinations. Dkt. 13, at 2.
Lindsey has been receiving mental treatment, see
Dkt. 34-1, at 13, 24-25, but it is unclear whether Lindsey
continues to suffer from some of his serious mental
conditions, and his mental conditions cast doubt whether this
proceeding would be fair without counsel assisting him.
Lindsey's circumstances may inhibit his ability to
investigate facts. Lindsey had been transferred to the Green
Bay Correctional Institution and back to WSPF. Dkt. 27
(notice of address change to GBCI); Dkt. 37 (notice of
address change to WSPF). These transfers, and the associated
difficulties in gathering evidence, impair his investigation.
See Santiago, 599 F.3d at 762 (“Because he had
been transferred to another facility after the events
underlying his claims, he faced significant problems that he
would not have faced if he had remained in the same facility.
. . . [T]he district court did not mention this very
important factor.”); Dkt. 48, at 2. Lindsey also says
that he had limited access to his legal materials for some
time at WSPF even when Wallace's motion for summary
judgment was pending. Dkt. 37. It is “the duty of the
district court to assist him, within reason, to make the
necessary investigation.” Santiago, 599 F.3d
at 763 (quoting Billman v. Indiana Dep't of
Corr., 56 F.3d 785, 790 (7th Cir. 1995)).
and most important, Lindsey will likely need an expert. The
parties dispute whether Lindsey suffered any objectively
serious harm, and Lindsey states that he will show such harm
by presenting evidence of physical harm. Dkt. 52, ¶ 6.
He wants to subpoena Langemo, who diagnosed him with acute
kidney failure. Dkt. 51; see also Dkt. 24-7, at 1.
Wallace presents his medical expert, Ryan Holzmacher, who
opines that Langemo erred in her diagnosis. Dkt. 33, ¶
15. To resolve the difference between the two medical
opinions, Lindsey would need to present the opinion of
Langemo or another expert in an admissible form. See
Fed. R. Evid. 702. I doubt Lindsey can do that without
has a litigation history that suggests a pattern of abuse, as
I have noted. Dkt. 6, at 4 n.1. Nevertheless, given the
record presented at summary judgment, and despite his past
litigation history, Lindsey is entitled to a fair opportunity
to litigate this case.
grant Lindsey's motion for assistance in recruiting
counsel. The court will attempt to find counsel willing to
Wallace's motion to take Lindsey's
moves to take Lindsey's deposition under Federal Rule of
Civil Procedure 30(a)(2)(B). Dkt. 54. If the court finds
counsel who is willing to represent Lindsey, counsel will
defend Lindsey at his deposition. So I will provisionally
grant Wallace's motion. Wallace may depose Lindsey after
the court attempts to recruit counsel for him.
Lindsey's motions for ...