United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 11),
DENYING PLAINTIFF'S MOTION TO WAIVE SERVICE FEE (DKT. NO.
13) AND DENYING AS PREMATURE THE PLAINTIFF'S LETTER
MOTION TO DISPUTE FACTS ALLEGED IN ANSWER (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed a complaint
under 42 U.S.C. §1983. Dkt. No. 1. The Prison Litigation
Reform Act applies to this case because the plaintiff was in
custody when he filed his complaint. The PLRA requires courts
to screen complaints filed by prisoner plaintiffs, to confirm
that the complaint states a claim upon which relief can be
granted and that it is not frivolous or malicious. 28 U.S.C.
March 14, 2018, U.S. Magistrate Judge William Duffin (the
judge assigned to this case at the time) screened the
plaintiff's complaint and allowed him to proceed on a
deliberate indifference claim against defendants Denise
Gilanyi, Samantha Keeku and John and Jane Does. Dkt. No. 8.
Judge Duffin ordered the U.S. Marshals Service to serve a
copy of the complaint and his screening order on defendants
Gilanyi and Keeku. Id. at 6. He informed the
plaintiff that the fee for the waiver-of-service packages is
$8.00 per item mailed and that neither the court nor the
Marshals Service has authority to waive the fee. Id.
7, 2018, the plaintiff filed a motion asking the court to
waive the service fee. Dkt. No. 13. He explains that he
initially understood Judge Duffin's order to mean that
the Marshals would serve the named defendants without him
prepaying the service fee, but he now believes he must prepay
the service fee before they will serve the named defendants.
Id. He states that he does not have the money to pay
the service fee, so he would like the court to waive the fee
so that this case can proceed. Id.
Judge Duffin explained in his screening order, Congress has
not given the court or the U.S. Marshal the authority to
waive the service fee, so the court must deny the
plaintiff's request to waive that fee.
plaintiff's initial impression of Judge Duffin's
order was correct. The court ordered the marshals to serve
the named defendants; that order did not depend on the
plaintiff paying the service fee. Although Judge Duffin
entered the order on March 14, the clerk's office
didn't transmit the service packet to the Marshals until
June 4. Dkt. No. 12. The delay in transmitting the service
packet to the Marshals is the reason that the Marshals
didn't serve the complaint right away; the fact that the
plaintiff has not paid the service fee did not cause any
delay. The named defendants executed waivers of service on
June 26, 2018, and they filed an answer on July 16, 2018.
Dkt. Nos. 16, 21.
the plaintiff is responsible for paying the service fee, the
fact that he hasn't had the money to do so before now has
not caused any delay in his case.
plaintiff also filed a motion asking about “how [he]
can gain the assistance of a[n] attorney . . . .” Dkt.
No. 11. In a 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, however, the plaintiff must make reasonable efforts to
hire a lawyer on his own. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). In this district, a plaintiff must
contact at least three lawyers and ask them to represent him.
He then must 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 his request for representation.
the plaintiff demonstrates that he has made those efforts,
the court 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). 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 has not shown that he tried to obtain a lawyer
without the court's assistance, he has not satisfied the
first Pruitt requirement. For that reason, the court
will deny his motion. Even if the plaintiff had
shown that he tried to hire a lawyer, the court still would
deny the plaintiff's motion now, because at this early
stage in the case, the court believes that the plaintiff can
manage the tasks he needs to accomplish.
the plaintiff filed a letter motion, dkt. no. 23, and a
brief, dkt. no. 24, disputing several of the allegations the
defendants made in their answer. In the motion, the plaintiff
explains that he is not trained in the law, and he
doesn't know whether this is what he is supposed to be
doing, but he wants to reserve his right to object to what
the defendants have said. Dkt. No. 23. The court will deny
the plaintiff's motion without prejudice, because it is
procedurally incorrect, and is premature.
plaintiff will get the opportunity to dispute what the
defendants have said, but now is not the time. The next step
in the federal litigation process is for the parties to
conduct “discovery.” During discovery, a party
gets to ask the other side to provide it with information or
documents. For example, Federal Rule of Civil Procedure 33
allows a party to serve interrogatories (written questions)
on the other party, to ask about information that may help
the party prove its claims or defenses. Fed.R.Civ.P. 34
allows a party to ask the other party to turn over any
reports, records or documents that the party thinks it needs
to prove its claims or defenses. (The court has included a
copy of these rules with this decision.) This way, each side
can collect information about what happened, and what
evidence is out there that shows what happens. This helps
both sides better understand the events that occurred, and
helps prepare them to dispute the other party's version
court will issue a separate scheduling order, giving the
parties a deadline by which they must complete discovery. The
court advises the plaintiff of several details regarding the
discovery process. First, parties serve their discovery
requests on each other; they do not file them with
the court. So the plaintiff should direct his requests to the
defendants, and must mail those requests to the
defendants' lawyer (John A. Nelson, von Briesen &
Roper SC, 411 E. Wisconsin Avenue, Suite 1000, Milwaukee,
Wisconsin, 53202-4427). He should not file his requests with
the court. Second, the rules allow a party thirty (30) days
to respond to a discovery request. So when the plaintiff
sends his discovery requests to the defendants, he should
allow some time for those requests to get from Jackson
Correctional Institution to Milwaukee, plus thirty days for
the defendants to respond, plus a little time for the
responses to get from Milwaukee back to JCI. The plaintiff
should not expect to get responses a week or so after he
makes his requests. Finally, the deadline that the court will
set in the scheduling order is the deadline for
completing all discovery. This means that a party
should not wait until thirty days before the deadline to send
discovery requests. If a party waits until thirty days before
the deadline to send the discovery requests, he or she will
receive their requests on the thirtieth day; discovery will
be over at that point, and that party will not have an
opportunity to follow up
scheduling order also will include a deadline for filing
dispositive motions. A dispositive motion gives a party the
chance to tell the court why it believes that it should win
the case, even if the other party's version of the facts
is true. It is a bit unusual for a plaintiff to file a
dispositive motion-usually the defendant files one and the
plaintiff will respond. When a defendant files a dispositive
motion (for example, a summary judgment motion), a plaintiff
must respond to each of the defendant's proposed facts
(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) and he must respond to the
legal arguments in the defendant's brief. A plaintiff
must support his facts or his disagreement with the
defendant's facts with evidence. He can do that by
relying on the facts and information he gets during discovery
or by telling the court his ...