United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
3), GRANTING PLAINTIFF'S MOTION TO WAIVE PARTIAL FILING
FEE (DKT. NO. 10) AND SCREENING COMPLAINT
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
24, 2018, the plaintiff filed a complaint under 42 U.S.C.
§1983, alleging that the defendants violated his
constitutional rights by denying him early release and
denying him access to the courts. Dkt. No. 1. He also filed a
motion for leave to proceed without prepayment of the filing
fee, dkt. no. 2, a motion to appoint counsel, dkt. no. 3, and
a motion to waive his initial partial filing fee, dkt. no.
10. This order resolves those motions and screens the
Motion to Proceed without Prepayment of the Filing
Prison Litigation Reform Act applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. §1915. That law gives courts discretion to allow
prisoners to proceed with their lawsuits without prepaying
the $350 filing fee, if they comply with certain
requirements. 28 U.S.C. §1915. One of those requirements
is that the prisoner pay an initial partial filing fee.
24, 2018, the court received the plaintiff's motion to
proceed without prepayment of the filing fee. Dkt. No. 2. On
June 6, 2018, the court ordered the plaintiff to pay an
initial partial filing fee of $5.43. Dkt. No. 7. The
plaintiff since has asked the court to waive the initial
partial filing fee, explaining that he has been released from
prison, is unemployed, has no assets and is indigent. Dkt.
No. 10. Based on this information, the court concludes that
the plaintiff doesn't have the money to pay the initial
partial filing fee. The court will grant his motion to waive
the initial partial filing fee, dkt. no. 10, and his motion
to proceed without prepaying the filing fee, dkt. no. 2.
Although the plaintiff no longer is incarcerated, he still
must pay the $350 filing fee over time, as he is able.
Motion to Appoint Counsel
plaintiff has asked the court to appoint him counsel for
“limited purposes, ” although he does not say
what those limited purposes are. Dkt. No. 3 at 1. He states
that the case is too complex and difficult for him, because
he does not have any formal experience practicing law or any
schooling in the law, and he has only limited resources.
Id. He says he's tried to find counsel to
represent him free of charge but hasn't had any luck; he
says he's contacted at least five lawyers. Id.
The plaintiff says he needs help with the “discovery
phase” of the case, because he will be released on July
3, 2018. Id. at 2. The plaintiff asserts
that counsel will be able to assist him with recording
depositions, finding a place to hold those depositions,
serving subpoenas, and obtaining documents from the
defendants, as well as hiring an investigator and conducting
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); 28 U.S.C
§ 1915(e)(1); Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). After a
plaintiff demonstrates he has made a reasonable attempt to
hire counsel on his own, 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 v. Mote, 503 F.3d 647, 655 (7th
Cir. 2007)). 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.”
plaintiff did not attach to his motion any documents showing
that he has attempted to retain counsel on his own, but the
court will take him at his word and find that he has made a
reasonable attempt to hire a lawyer on his own. The court
will not, however, appoint a lawyer for the plaintiff at this
point. The plaintiff's complaint and other communications
with the court show that he can clearly communicate why he
believes he is entitled to the relief he seeks. The
plaintiff's claim is not as complex as he indicates-he
says that the defendants denied him early release, to which
he was entitled, and he says that some of the defendants
denied him access to the courts to try to challenge that
denial. While there is a problem with the
plaintiff's complaint-as the court will explain below, he
has brought unrelated claims against unrelated defendants in
the same lawsuit-the court believes that the plaintiff can
remedy that problem himself, after reading this decision.
plaintiff mentions that he'll need help with discovery.
Before the case even gets to that point, the plaintiff will
need to amend his complaint, and the court will need to
screen the amended complaint. If the plaintiff files an
amended complaint, and the court concludes that it states
cognizable claims, the court will have the complaint served
on the appropriate defendants, and they will answer or
otherwise respond. Only after the defendants file an answer
will the court issue an order setting deadlines for
discovery. The plaintiff's concerns about discovery are
the plaintiff isn't in custody any longer. Unlike
plaintiffs who are in custody, the plaintiff can to go to a
law library, or a regular library, and spend as much time as
he wants preparing papers and doing research. He does not
need to worry about prison officials taking his legal papers,
or being transferred to another facility, or losing law
library time because of segregation.
court understands that it would be very helpful to the
plaintiff to have ae lawyer help him, but “deciding
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)). That is why the court must analyze each
case when determining whether a plaintiff is able to proceed
on his own. The court concludes that this plaintiff can
handle his case on his own right now, so it will deny his
motion without prejudice. If, later in the case,
circumstances change, the plaintiff can renew his motion for
an appointed lawyer.
Screening of the Complaint
Federal Review Standard
requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. §1915A(a).
The court must dismiss a complaint, or part of it, if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). A complaint that offers mere
“labels and conclusions, ” however, or a
“formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient
factual matter, accepted as true, “that is plausible on
its face.” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, district
courts follow the principles in Twombly, by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. Second, if there are well-pleaded factual
allegations, the court must “assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Id.
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that 1) someone deprived him of a right
secured by the Constitution or laws of the United States; and
2) whoever deprived him of that right was acting under color
of state law. Buchanan-Moore v. Cty. of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill.
of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004));
see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The court gives a pro se plaintiff's
allegations, “however inartfully pleaded, ” a
liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
party asserting a claim . . . may join, as independent or
alternate claims, as many claims as [that party] has against
an opposing party.” Fed.R.Civ.P. 18(a). But under
Fed.R.Civ.P. 20(a)(2), a plaintiff can sue more than one
defendant in a single lawsuit only if his claims against all
the defendants arose out of the same transaction or
occurrence and there are questions of law or fact that are
common to all the defendants. Read together, these two rules
require that “[u]nrelated claims against different
defendants belong in different suits . . . to ensure that
prisoners pay the required filing fees-for the Prison
Litigation Reform Act limits to 3 the number of frivolous
suits . . . that any prisoner may file without prepayment of
the required fees.” George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007). The George court explained
that “multiple claims against a single party are fine,
but Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2.”
George, 507 F.3d at 607.
plaintiff has sued Warden Dohms of the Flambeau Correctional
Center; Cathy Jess; Jim Schwochert; K. Johnson; John Doe
Department of Corrections (DOC) staff; Peggy M. Alt; Jon E.
Litscher; the Department of Corrections; unknown members of
the Act 28 Repeal Implementation committee; unknown
Department of Corrections appeal administrator of offender