United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed a motion asking
the court to recruit a lawyer to represent him on a volunteer
basis. Dkt. No. 20. The plaintiff explains that the discovery
deadline is set for May, but he does not “understand
the process.” Id. The plaintiff also filed a
letter, and contacted the court's staff, about his
concern that an FBI agent is investigating him and poses a
danger to his safety. See, e.g., dkt. no. 21.
civil case, the court has the discretion to recruit a lawyer
for individuals who are unable to afford one. Navejar v.
Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C.
§1915(e)(1); Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). First, the
plaintiff must make reasonable efforts to hire a lawyer on
his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). Generally, in this district, a plaintiff must contact
at least three lawyers in an effort to hire a lawyer on his
own. He must then provide the court with the names of the
lawyers he contacted as well as the dates he contacted them
and copies of any letters they sent to the plaintiff in
response to the contact.
the plaintiff demonstrates that he has made those efforts,
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, 718 F.3d at 696 (citing
Pruitt, 503 F.3d at 655). 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)).
the plaintiff does not say whether he tried to hire a lawyer
on his own, the court will deny his motion for counsel
because he fails to satisfy the first Pruitt
requirement. Even if the plaintiff had shown that he
tried to hire a lawyer, however, the court still would deny
the plaintiff's motion at this time, because the court
believes he is capable of engaging in discovery and
responding to a motion for summary judgment.
plaintiff stated in his motion that he does not understand
the process for discovery. During discovery, a plaintiff gets
to ask the other party to provide him with information or
documents. For example, Fed.R.Civ.P. 33 allows a plaintiff to
serve interrogatories (written questions) on the other side,
to ask about information that may help the plaintiff prove
his claims or defenses. Fed. R. Civ. Pro. 34 allows a
plaintiff to ask the other party to turn over any reports,
records, or documents that the plaintiff thinks he needs to
prove his claims or defenses. (The court has included a copy
of these rules with this decision.) Although the plaintiff
should direct his requests to defendant Johnson, he must
mail his requests to defendant Johnson's lawyer
(Wisconsin Department of Justice, Office of the Attorney
General, Attn: Ann Peacock, 17 West Main Street, PO Box 7857,
Madison, Wisconsin, 53707-7857).
parties were supposed to finish exchanging their discovery
information by May 7, 2018. The plaintiff filed his motion
asking for help well before this deadline. For that reason,
the court will extend the deadline for completing discovery
to July 16, 2018. The court reminds the
plaintiff that he must mail his discovery requests to the
defendant's attorney at least thirty days before that
deadline, to allow the defendant sufficient time under the
rules to respond to him by the deadline.
court also will extend the dispositive motion deadline to
August 16, 2018. A dispositive motion gives
a plaintiff or a defendant a chance to tell the court why he
believes that, even if the other side's facts are all
true, the law requires the court to rule in favor of the
moving party. It is unusual for plaintiffs to file
dispositive motions; usually a defendant will file one and
then the plaintiff will respond. When a defendant files a
dispositive motion (for example, a summary judgment motion),
the plaintiff must respond to each of the defendant's
proposed facts, either by agreeing with the proposed fact or
explaining why he disagrees with the proposed fact; if the
plaintiff does not indicate one way or the other, the court
will assume that he agrees with the proposed fact. He also
must respond to the legal arguments in the defendant's
brief. A plaintiff must support his facts with evidence. He
can do that by relying on the facts and information he
received during discovery or by telling the court his version
of what happened in an affidavit or an unsworn declaration
under 28 U.S.C. §1746. An unsworn declaration is a way for
the plaintiff to tell his side of the story while declaring
to the court that everything he has written down is true and
on the plaintiff's filings to date, the court believes
that he is capable of serving discovery requests on the
defendant (by mailing them to the defendant's attorney)
and responding to the discovery requests the defendant serves
on him. The court also believes that the plaintiff is able to
tell the court his version of the events in response to any
dispositive motion the defendant may file.
the court notes that the plaintiff is no longer incarcerated,
so he can get help from legal aid resources (such as the
Federal Legal Assistance Program-the plaintiff can use the
enclosed form or go to www.edwba.org) and he can do his own
research online at a library. The Eastern District of
Wisconsin's website (www.wied.uscourts.gov) has a tab
labeled “Representing Yourself that has guides and a
glossary and suggests legal resources that may be helpful to
a pro se litigant.
court also understands that the plaintiff believes he is in
danger. His concerns for his safety are not related to this
case, however, so even if the court were to recruit a lawyer
to represent the plaintiff (which it will not at this time),
the lawyer would not be able to help the plaintiff with those
issues. As court staff already has advised the plaintiff on
the telephone, he should contact law enforcement if he
believes he is in danger.
court DENIES without prejudice the
plaintiffs motion for appointment of counsel. Dkt. No. 20.
court ORDERS that the discovery deadline is
EXTENDED to July 16, 2018,
and the dispositive motions deadline is
EXTENDED to August 16,
33. Interrogatories to Parties
Number. Unless otherwise stipulated or ordered by the court,
a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts. Leave to
serve additional ...