United States District Court, E.D. Wisconsin
DANA E. MCCALLA, Plaintiff,
ANGELA THOMPSON, LORI DOEHLING, HOLLY A. GUNDERSON, SARAH DEHLING, DEBRA BELLIN, TIFFANY GIMENEZ, SHARI KLENEKY, JENNIFER DALY, TINA CRONN, DEBRA OLSEN, and CINDY BARTER, Defendants.
Stadtmueller U.S. District Judge
has been allowed to proceed on a claim of deliberate
indifference to his serious medical needs. (Docket #12 at
7-8). Now that all Defendants have been served and have
entered appearances in this case, the Court will issue a
scheduling order. The Court will also address three motions
filed by Plaintiff since its last order of May 28, 2019. The
first motion is one for reconsideration of the denial of a
prior motion for appointment of counsel. (Docket #50). The
Court will treat the motion as a renewed request for
civil litigant, Plaintiff has “neither a constitutional
nor statutory right to a court-appointed attorney.”
James v. Eli, 889 F.3d 320, 326 (7th Cir. 2018).
However, 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 a 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)). Whether to appoint
counsel in a particular case is left to the court's
discretion. James, 889 F.3d at 326; McCaa v.
Hamilton, 893 F.3d 1027, 1031 (7th Cir. 2018). The
appointment of counsel is severely limited by the practical
realities in this area of law, namely that very few lawyers
are willing to be appointed to take on prisoner-filed cases,
while hundreds of prisoner-plaintiffs file new cases every
the first Pruitt element, Plaintiff has provided
letters demonstrating his attempts to obtain counsel on his
own, and his inability to secure representation. (Docket
#50-1). The Court will, therefore, conclude that the first
element is met at this time. However, the second
Pruitt element is not established. Plaintiff's
filings have been clear and cogent, and he displays a
complete understanding of his claims and the facts underlying
them. Indeed, the instant motion is primarily one seeking
appointment of a medical expert. Plaintiff states that knows
that he needs expert medical testimony to prove his claim,
and so requests that the Court appoint a specialist doctor to
serve as his expert. See (Docket #50 at 2-3).
Plaintiff desires an expert to bolster his claims, he should
hire one. The Court will not appoint him counsel so that the
appointed lawyer will pay the expert's bill (which that
lawyer may then seek reimbursement for from the taxpayer). In
other words, Plaintiff is not entitled to use the Court's
resources to subsidize his litigation efforts. See
Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir.
2003); Ray v. City of Milwaukee, No. 06-CV-1226-WCG,
2008 WL 2785631, at *1-2 (E.D. Wis. July 16, 2008).
second motion requests entry of default judgment against
Defendant Debra Olsen (“Olsen”). (Docket #55).
But Olsen has already answered the operative complaint.
(Docket #38). She is not in default.
third motion complains that prison officials are not
permitting him to use legal loan funds for certain expenses.
(Docket #57). He asks that he be permitted to use his release
account funds to pay the expenses. This Court lacks the
authority-statutory or otherwise-to order that a prisoner may
tap into his release account to pay current (or future)
litigation costs. Cf. Wilson v. Anderson, No.
14-CV-0798, 2014 WL 3671878, at *3 (E.D. Wis. July 23, 2014)
(declining to order that a prisoner's full filing fee be
paid from his release account, “[g]iven the [DOC's]
rationale for segregating funds into a release account”
and the absence of any statutory authority compelling the
court to do so).
prisoners the use of their release accounts to fund
litigation costs is also prudent given that those accounts
are “restricted account[s] maintained by the [DOC] to
be used upon the prisoner's release from custody.”
Id. Permitting a prisoner to invade that account for
litigation costs could be a detriment to that prisoner's
likelihood of success post-incarceration, see Wis.
Admin. Code § DOC 309.466 (stating that disbursements
from a prisoner's release account are authorized
“for purposes that will aid the inmate's
reintegration into the community”), especially if the
prisoner is overly litigious. 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, 352 F.3d
at 1111; 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).
The Court will, therefore, deny Plaintiff's request to
use his release account funds to pay any litigation expenses
in this matter. As to his disputes with prison officials over
legal loans, that is a matter between Plaintiff and the
officials. The Court cannot override state policy and
procedure on such matters.
light of the foregoing, each of Plaintiff's motions must
be denied. The Court will issue the scheduling order
separately from this order.
IT IS ORDERED that Plaintiff's motions
for reconsideration, (Docket #50), for default judgment,
(Docket #55), and for access to release account funds,