United States District Court, E.D. Wisconsin
AND ORDER DENYING THE PLAINTIFF'S MOTION FOR
RECONSIDERATION OF THE APPOINTMENT OF COUNSEL (DKT. NO. 20),
DENYING AS UNNECESSARY THE PLAINTIFF'S MOTION TO
AMEND/CORRECT THE COMPLAINT (DKT. NO. 21), GRANTING MOTION TO
WITHDRAW DECLARATION FOR ENTRY OF DEFAULT (DKT. NO. 26) AND
DENYING MOTION TO SUBMIT A MEMORANDUM TO DEFENDANT'S
ANSWERS (DKT. NO. 28)
PAMELA PEPPER United States District Judge
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the defendant violated his civil rights. Dkt.
No. 1. On January 8, 2018, Magistrate Judge William Duffin
screened the complaint, and allowed the plaintiff to proceed
with an Eighth Amendment claim that the defendant showed
deliberate indifference toward the plaintiff's suicidal
inclinations. Dkt. No. 16. In that same order, Judge Duffin
denied without prejudice the plaintiff's motion to
appoint counsel, because the plaintiff had not provided
evidence showing that he had attempted to recruit counsel on
his own. Id. at 6-7.
January 22, 2018, the Clerk of Court reassigned the case to
this court, because one or both parties had not consented to
the magistrate judge making the final decision in the case.
The plaintiff then filed a motion asking the court to
reconsider Judge Duffin's decision and order denying his
motion to appoint counsel, dkt. no. 20, and a motion to
amend/correct the complaint, dkt. no. 21.
motion to amend/correct the complaint, the plaintiff explains
that he wants a jury as well as $95, 000 in damages. Dkt. No.
21. There is no need for the plaintiff to file another
complaint; the court will construe the plaintiff's motion
to amend/correct the complaint as a supplement to his
original complaint. The court will deny as unnecessary the
plaintiff's motion to amend/correct the complaint.
motion to reconsider Judge Duffin's denial of his motion
to appoint counsel, the plaintiff argues that on November 2,
2017, he provided the court with the names of three lawyers.
Dkt. No. 20. The court never received any document dated
November 2, 2017, and-up until it received this motion from
the plaintiff-never received any information about any
attorneys that he contacted. In this most recent motion,
however, the plaintiff does list the names of three lawyers
he contacted, dkt. no. 20, and he provided the court with the
disbursement receipts that show that he paid for postage to
mail letters to these lawyers, dkt. no. 20-1.
court is satisfied that the plaintiff has made reasonable
attempts to secure counsel on his own. It will not, however,
appoint counsel at this time. Once the plaintiff makes
reasonable attempts to hire counsel, the court must decide
“whether the difficulty of the case-factually and
legally-exceeds the particular plaintiff's capacity as a
layperson to coherently present it.” Navejar v.
Iyola, 718 F.3d 692, 696 (7th Cir. 2013)(citing
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007).
The court looks, not only at the plaintiff's ability to
try his case, but also at his ability to perform other
“tasks that normally attend litigation, ” such as
“evidence gathering” and “preparing and
responding to motions.” Id. “[D]eciding
whether to recruit counsel ‘is a difficult decision:
Almost everyone would benefit from having a lawyer, but there
are too many indigent litigants and too few lawyers willing
and able to volunteer for these cases.'”
Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir.
2014) (quoting Olson v. Morgan, 750 F.3d 708, 711
(7th Cir. 2014)).
plaintiff's complaint clearly describes what happened to
him and why he believes those events violated his
constitutional rights. Although the plaintiff has explained
that he suffers from mental health issues, the court has been
able to understand what the plaintiff is saying. The
plaintiff's ability to tell the court what happened is
the most important consideration, because the plaintiff's
most useful piece of evidence is his own testimony describing
how the defendant treated him. The plaintiff does not need
medical experts or strategic lawyering to show that the
defendant refused to treat his suicidal thoughts. If, as we
move through the case, the legal procedures become more
complex, and the plaintiff finds himself unable to make his
argument clear, he can renew his motion for the appointment
of counsel at that time.
the plaintiff filed the above two motions, the defendant
filed her answer to the complaint. Dkt. No. 23. The court
received the answer on March 9, 2018, id.; three
days later, the court received from the plaintiff a document
entitled “Declaration for Entry of Default.” Dkt.
No. 24. In this declaration, the plaintiff asserted that more
than sixty days had elapsed since the date the defendant was
served with the complaint. Id. He asked the clerk to
enter default. Id.
defendant accepted service on January 22, 2018. Dkt. No. 18.
The court received her answer on March 9, 2018-forty-six (46)
days after she accepted service. The defendant's answer
was timely, and default is not appropriate. The plaintiff,
however, has since asked the court for permission to withdraw
his declaration of default. Dkt. No. 26. The court will grant
on March 16, 2018, the court received from the plaintiff a
motion to submit a memorandum to the defendant's answer.
Dkt. No. 28. The court will deny this motion as unnecessary,
for a couple of reasons. First, the plaintiff appears to
believe that, in answering the complaint and denying the
allegations in that complaint, the defendant was asking the
court to dismiss the case. Dkt. No. 28 at 1. The plaintiff is
mistaken. By denying the allegations in the complaint, the
defendant simply is telling the court that she does not agree
with what the plaintiff has alleged. This is not unusual in
lawsuits. If everyone agreed with each other about what
happened, there would be no need for lawsuits. Once one side
(the plaintiff) makes allegations about what happened, and
then the other side (the defendant) disagrees, the case is
ready to move forward to the next stage.
there will come a proper time for the plaintiff to make his
arguments as to why he believes that the defendant violated
his rights. On March 12, 2018, the court issued a scheduling
order (the plaintiff likely had not received that order at
the time he filed his motion to submit a memorandum). That
order sets deadlines for the parties to exchange information
with each other (this is called conducting discovery). During
the discovery process, the plaintiff will be able to ask the
defendant to answer certain questions about what happened
(Fed. R. Civ. P. 33) and will be able to ask the defendant to
produce reports or records that resulted from the alleged
events (Fed. R. Civ. P. 34).
scheduling order also sets deadlines for the parties to file
“dispositive motions, ” such as summary judgment
motions, or motions to dismiss. The plaintiff can present the
court with his version of events, through an affidavit or
unsworn declaration under 28 U.S.C. §1746, in response
to any motion for summary judgment that the defendant might
deadlines in the scheduling order have not expired. The
parties should, right now, be asking each other for discovery
information-they have until July 16, 2018 to complete that
process. Once they've collected all of the relevant
information about the events, either party may file a
dispositive motion. The deadline for filing dispositive
motions is August 20, 2018. Right now, ...