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Holifield v. Dohms

United States District Court, E.D. Wisconsin

March 13, 2019

AL HOLIFIELD, Plaintiff,



         On May 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 complaint.

         I. Motion to Proceed without Prepayment of the Filing Fee

         The 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.

         On May 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.

         II. Motion to Appoint Counsel

         The 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.[1] 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 research. Id.

         A court 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.” Id.

         The 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.

         The 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 premature.

         Finally, 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.

         The 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.

         III. Screening of the Complaint

         A. Federal Review Standard

         The law 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. §1915A(b).

         To 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).

         In 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.

         To 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)).

         “A 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.

         B. Factual Allegations

         The 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 ...

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