United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
the Court are two motions filed by pro se Plaintiff
Mark Russell Weinert, an inmate at Fox Lake Correctional
Institution. The first is a motion seeking the appointment of
counsel. (Docket #3). The second is a motion seeking
permission to pay the balance of the filing fee in this case
from his prison release account. (Docket #11). For the
reasons explained below, both will be denied.
motion for the appointment of counsel, Plaintiff explains
that he contacted twenty-one law firms, of which twelve wrote
back, all declining to take his case. (Docket #3). He
anticipates having difficulty contacting various staff
members involved in the facts underlying his claim, and he
believes the medical issues involved in his claim are
complicated and will be disputed. Id. Finally, he
says he will have trouble conducting research because he is
civil litigant, Plaintiff has no automatic right to
court-appointed counsel. Luttrell v. Nickel, 129
F.3d 933, 936 (7th Cir. 1997). Under 28 U.S.C. §
1915(e)(1), the “court may request an attorney to
represent any person unable to afford counsel.” The
court should seek counsel to represent the plaintiff if: (1)
he has made reasonable attempts to secure counsel; and (2)
“‘the difficulty of the case-factually and
legally-exceeds the particular plaintiff's capacity as a
layperson to coherently present it.'” Navejar
v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)
(en banc)). The Seventh Circuit has emphasized that
“[t]he question is not whether a lawyer would present
the case more effectively than the pro se plaintiff;
‘if that were the test, district judges would be
required to request counsel for every indigent
litigant.'” Pruitt, 503 F.3d at 655
(quoting Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir. 2006)) (internal quotation omitted). Instead,
“[t]he question is whether the plaintiff appears
competent to litigate his own claims, given their degree of
difficulty, and this includes the tasks that normally attend
litigation: evidence gathering, preparing and responding to
motions and other court filings, and trial.”
Plaintiff does not claim to be incompetent. Although he
anticipates that collecting and analyzing medical evidence
will be difficult, he does not provide a reason, other than
reasons common to all incarcerated people, why he is
particularly ill-suited to litigate his case. Plaintiff's
lack of legal training and his limited access to resources in
prison, while unfortunate, bring him in line with practically
every other prisoner litigating in this Court. District
courts cannot be expected to appoint counsel in circumstances
which are common to all or many prisoners. See Bracey v.
Grondin, 712 F.3d 1012, 1017-18 (7th Cir. 2013);
Pruitt, 503 F.3d 647, 656 (observing that the
Seventh Circuit has “resisted laying down categorical
rules regarding recruitment of counsel in particular types of
cases”); Harper v. Bolton, 57 F.Supp.3d 889,
893 (N.D. Ill. 2014). Doing so would place untenable burdens
on court resources. It would also turn the discretion of
Section 1915(e)(2) on its head, making appointment of counsel
the rule rather than the exception. Further, Plaintiff has
thus far demonstrated competence in the litigation process.
If his worries about his capabilities in the discovery and
briefing stages of this case come to fruition, he can re-file
a motion asking the Court to consider appointing counsel for
him at that time.
Plaintiff's request that the Court allow him to pay the
balance of the filing fee in this case from his prison
release account will also be denied. Pursuant to the Prison
Litigation Reform Act (“PLRA”), a prisoner
plaintiff who is granted leave to proceed without prepayment
of the filing fee, as Plaintiff was in this case,
see (Docket #13), is required to pay the statutory
filing fee of $350.00 for any civil action. See 28 U.S.C.
§ 1915(b)(1). After the IPFF is paid, the prisoner must
make monthly payments of twenty percent of the preceding
month's income until the $350.00 filing fee is paid in
full. 28 U.S.C. § 1915(b)(2). “The agency having
custody of the prisoner shall forward payments from the
prisoner's account to the Clerk of the Court each time
the amount in the account exceeds $10 until the filing fees
are paid.” Id.
cannot use his release account funds to pay the balance
remaining on the filing fee. “A release account is a
restricted account maintained by the Wisconsin Department of
Corrections to be used upon the prisoner's release from
custody upon completion of his sentence.” Wilson v.
Anderson, No. 14-C-798, 2014 WL 3671878 at *3 (E.D. Wis.
July 23, 2014) (citing Wis. Admin. Code § DOC 309.466).
Given the purpose of the release account, federal courts do
not deem it prudent to focus on that account as the source of
funds to satisfy the filing fee payment requirements.
Smith v. Huibregtse, 151 F.Supp.2d 1040, 1042 (E.D.
Wis. 2001). As the Seventh Circuit has instructed,
“like any other civil litigant, [a prisoner] must
decide which of [his] legal actions is important enough to
fund, ” Lindell v. McCallum, 352 F.3d 1107,
1111 (7th Cir. 2003); thus, if a prisoner concludes that
“the limitations on his funds prevent him from
prosecuting [a] case with the full vigor he wishes to
prosecute it, he is free to choose to dismiss it voluntarily
and bring it at a later date.” Williams v.
Berge, No. 02-CV-10, 2002 WL 32350026, at *8 (W.D. Wis.
Apr. 30, 2002). He is not free, however, to tap into his
release account to cover those legal costs. In light of the
foregoing, the Court will deny Plaintiff's motion to use
release account funds to pay the balance of the filing fee.
If he does not wish to pay the full fee, he can file a notice
of voluntary dismissal of this action.
required under the PLRA, the institution where Plaintiff is
incarcerated will forward payments from his trust account to
the Clerk of the Court each time the amount in the account
exceeds $10 until the filing fee is paid in full. 28 U.S.C.
IT IS ORDERED that Plaintiff's motion
for appointment of counsel (Docket #3) be and the same is
hereby DENIED without prejudice; and
IS ORDERED that Plaintiff's motion to pay the
full filling fee with funds in his release account (Docket