United States District Court, E.D. Wisconsin
THOMAS R. AUSTIN, Petitioner,
SUSAN NOVAK, Respondent.
ORDER CONSTRUING PETITIONER'S LETTER AS SECOND
MOTION FOR APPOINTMENT OF COUNSEL AND DENYING MOTION (DKT.
NO. 27) AND DENYING OBJECTION TO TRANSFER PETITIONER AND
MOTION FOR IMMEDIATE PRELIMINARY INJUNCTION (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Motion to Appoint Counsel (Dkt. No. 27)
Judge William C. Griesbach screened the petitioner's
petition for writ of habeas corpus and denied his
motion to appoint counsel. Dkt. No. 5. In the order, Judge
Griesbach stated that he did not believe that the appointment
of counsel would serve the interests of justice. Id.
at 3. He found that the petitioner had "a greater than
average ability to communicate in writing" and concluded
that there was no need for an outside investigation of facts
or the gathering of new evidence, and he found that the
issues the petitioner had raised were not so complex that
denying him counsel would result in a miscarriage of justice.
Id. at 4. After the respondent answered, the clerk
of court transferred the case to this court and the parties
filed their briefs.
21, 2018, the petitioner filed a letter asking about the
status of his petition. Dkt. No. 27. He also asked the court
to "consider"-the court thinks he meant
"reconsider"-the motion that he'd filed back in
2014, asking Judge Griesbach to appoint counsel (dkt. no. 2).
Id. He reiterated the issues that he raised in his
petition, and asked the court to "consider the
appointment of counsel by the Federal Defender's office
so [that he] could bring these unconstitutional issues
properly into [the court] for review." Id.
appears that the petitioner is asking the court to reconsider
Judge Griesbach's order denying his request for the
appointment of counsel. Other than stating how important his
issues are, the petitioner has not given the court any reason
to reconsider that decision. There is no statutory or
constitutional right to court-appointed counsel in federal
civil litigation. Pruitt v. Mote, 503 F.3d 647, 647
(7th Cir. 2007). This is particularly true in habeas
cases. The Seventh Circuit Court of Appeals has held that
"[a] litigant is not entitled to appointed counsel in a
federal postconviction proceeding," although it notes
that a district court "may appoint counsel if 'the
interests of justice so require.'" Taylor v.
Knight, 223 Fed.Appx. 503, 504 (7th Cir. 2007)
(citations omitted) (quoting 18 U.S.C. §3006A(a)(2)(B)).
parties have briefed the issues the petitioner raised. It is
not the fact that the petitioner does not have a lawyer that
is making this case drag on; it is the court's heavy case
load and large backlog. There is nothing a lawyer could do
for the petitioner right now, even if the court believed that
he needed one, and the court does not. The court agrees with
Judge Griesbach that the petitioner writes clearly, and is
able to explain his arguments in a way that the court can
understand them. There is nothing to do at this point but for
the court to rule on the petition. The court hopes to be able
to do that soon.
Objection to Transfer Petitioner
Under Rule 36 and Motion
Preliminary Injunction to
Stop Retaliatory Acts
Causing Emotional Abuse (Dkt. No. 28)
November 26, 2018, the petitioner filed a motion asking the
court to grant him preliminary injunctive relief. Dkt. No.
28. He signed the motion on November 18, 2018. Id.
at 8. A history of the petitioner's housing assignments
is helpful to understanding his argument, and the court's
petitioner went into the custody of the Department of
Corrections in December 2002.
https://appsdoc.wi.gov/lop/detail.do. After a little over a
month in reception at Dodge Correctional Institution (the
central reception center for adult male inmates), he was
designated to the minimum-security section of the Fox Lake
Correctional Center (FLCC). Id. He eventually was
released to extended supervision in January of 2005.
Id. In October 2006, he returned to Department of
Corrections custody, and eventually was designated to the Fox
Lake Correctional Institution (FLCI). Id. He
remained at FLCI for the next ten years, through November
2016, and was housed there when he filed this petition in May
2014. Id. On November 23, 2016, he was transferred
to Oakhill Correctional Institution. Id. Two years
later, the petitioner was transferred from Oakhill to Dodge
Correctional Institution to Columbia Correctional
petitioner says that in 2015, while he was at FLCI, he helped
someone named Ryan Rozak filed a federal civil rights lawsuit
against Randall Hepp, who at that time was the warden at
FLCI. Dkt. No. 28 at 2. The petitioner says that Rozak had
attorneys, and that Rozak notified the petitioner that the
attorneys wanted to talk to him about the lawsuit and about
discovery materials that were being sent to Rozak.
Id. The petitioner says that there was a conference
call scheduled for November 22, 2016, but before that call
took place, Rozak's lawyers delivered the discovery to
FLCI's mail room, where a captain intercepted them.
Id. The petitioner says that the captain called
Rozak to his office and threatened Rozak (apparently because
of the amount of paperwork that had been delivered).
Id. The petitioner says Rozak went straight back to
his unit and called his lawyers, who called Warden Hepp, who
disciplined the captain. Id. at 2-3. The petitioner
says that Rozak's lawyer also called Department of
Corrections headquarters in Madison. Id. at 3.
petitioner alleges that Hepp went to Rozak's housing unit
and asked if Rozak knew the petitioner. Id. When
Rozak replied that he did know the petitioner, Hepp said that
the petitioner had "made a lot of enemies in
Madison;" Rozak related this to the petitioner the next
November 22, 2016, the petitioner participated in the
conference call with Rozak's lawyers, and was told that
he might be a "victim-witness" to Rozak's suit.
Id. The petitioner alleges that "the very next
day," he was moved to Oakhill Correctional Institution
(a minimum security prison), despite the fact that he was
supposed to have been moved to the John C. Burke Correctional
Center (a minimum security facility offering work release
programs). Id. The petitioner says he later found
out that Rozak's case was resolved through arbitration,
and that the governor of Wisconsin had given FLCI three
million dollars to correct the water issue that was the
subject of Rozak's suit. Id.
petitioner says that while the "court proceedings"
were pending, Hepp became the interim warden at Oakhill,
where the petitioner had been living since November 23, 2016
(the day after the conference call with Rozak's lawyers).
petitioner believes that because he helped Rozak with
Rozak's lawsuit, Oakhill staff were mistreating him and
subjecting him to emotional abuse by misrepresenting facts,
lying to him and threatening him with loss of possible work
release and community custody privileges. Id. at 7.
He says that he saw others getting community custody jobs
even though they had much more time left until their
mandatory release dates ...