United States District Court, E.D. Wisconsin
WILLIAM C. SWAN, Plaintiff,
CO KLOWEIN and DEBBIE, Defendants.
DECISION AND ORDER DENYING THE PLAINTIFF'S MOTION
TO APPOINT COUNSEL (DKT. NO. 10) AND GRANTING THE
PLAINTIFF'S MOTION TO CORRECT HIS COMPLAINT (DKT. NO.
AMELA PEPPER United States District Judge.
William C. Swan has filed a motion requesting that the court
appoint counsel to represent him. Dkt. No. 10. The plaintiff
also has filed a motion seeking to correct his complaint by
transposing the names of two defendants. Dkt. No. 16.
Motion to Appoint Counsel
plaintiff has asked the court to appoint counsel to represent
him. Dkt. No. 10. He asserts that thus far, he has had the
help of others in litigating the case, but that he personally
does not “have knowledge of the law, the application of
the law, or how to litigate (draft documents, etc.).”
Id. He states that he is unable to afford counsel,
that his imprisonment will limit his ability to litigate,
that the issues involved in the case are complex, and that he
has limited access to the law library. Id. He also
asserts that the case likely will include conflicting
testimony where “counsel would better enable plaintiff
to present evidence and cross examine witnesses.”
has discretion in a civil case to decide whether to recruit a
lawyer for someone who cannot afford one. Navejar v.
Iyola, 718 F.3d 692, 696 (7th Cir. 2013); Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th
Cir. 2013); 28 U.S.C §1915(e)(1). Before a court will
appoint counsel, however, the person asking for the
appointment must make a reasonable effort to hire private
counsel on his own. Pruitt v. Mote, 503 F.3d 647,
653 (7th Cir. 2007). In this district, to demonstrate a
“reasonable effort, ” a person must tell the
court the names of at least three attorneys whom he asked to
represent him, and provide the dates of the contact and, if
available, the attorney's response.
plaintiff demonstrates that he has made a reasonable attempt
to hire counsel, the court then will decide “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, 503 F.3d at 655). To decide
that, the court looks, not only at a 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 has satisfied the first requirement; he attached to
his motion letters from four lawyers who declined to
represent him. Dkt. No. 10-1. The court will not, however,
grant the plaintiff's motion at this time. Although
serious, the plaintiff's claims are not complex. The
court has been able to understand his claims-that is why the
court allowed him to proceed on them. There are only two
defendants, and the plaintiff was present for the events that
he described in his complaint. At this point, the court
concludes that the plaintiff has the ability to represent
the defendants have been served and have answered the
complaint, and after the court enters a scheduling order, the
plaintiff will be able to use written discovery (Federal
Rules of Civil Procedure 33 and 34) to ask the defendants
questions (interrogatories) and to ask them for documents
(requests for production) regarding his claims. The court has
no reason to think that the plaintiff cannot handle these
tasks on his own.
the court is not ignoring the plaintiff's argument that
he is an incarcerated person with limited access to legal
resources, that he has no knowledge of the law, and that he
can't afford to hire a lawyer. Unfortunately, the vast
majority of incarcerated persons who file civil rights
actions-and there are many of them-are in the same situation.
The court cannot appoint counsel for every single
incarcerated person who asks. That is why the court must look
at each plaintiff's pleadings and the nature of each
plaintiff's case, to determine whether the case is so
complex that the plaintiff cannot represent himself. In this
case, at this point, the court determines that the plaintiff
can represent himself during the discovery and motions phases
of the case.
Motion to Substitute Defendants
court's March 5, 2018 screening order, it dismissed
defendants Joyce (an Aramark Food Service Supervisor);
Correctional Officer Billington; and Sergeant Stacey Butke,
because it found that the plaintiff had not alleged
sufficient facts to state a claim against them. Dkt. No. 12.
The court allowed the plaintiff to proceed on a deliberate
indifference claim against Correctional Officer Klowein, and
a claim regarding his conditions of confinement against
Debbie, an Aramark Food Service Official. Id.
March 9, 2018, the court received from the plaintiff a motion
asserting that throughout his complaint, he had erroneously
alleged that Debbie was the Aramark employee who purportedly
subjected him to inhumane conditions of confinement, and that
Joyce was the Aramark official who allegedly sent him to his
cell after he was injured. Dkt. No. 16. He asserts that in
fact, it was Joyce who was the Aramark employee who
had engaged in the purported acts regarding his conditions of
confinement, and Debbie who was the Aramark official
that allegedly sent him to his cell. Id. He requests
the court to allow him to amend the complaint to correct
the court has dismissed Joyce, the court will construe the
plaintiff's motion to correct his complaint as a motion
to substitute Joyce as the proper defendant for his
conditions of confinement claim. The court will dismiss
defendant Debbie (for the reasons it dismissed Joyce in its
March 5, 2018 order). The October 26, 2017 will remain the
operative complaint, with “Joyce” being
substituted for Debbie.
court notes that the Marshal's Service returned a waiver
of service form executed by Debbie. The court will order the