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Farr v. Staat

United States District Court, E.D. Wisconsin

August 13, 2019

JASON MILO FARR, Plaintiff,
v.
LIEUTENANT STAAT, OFFICER HUNTER, MILWAUKEE COUNTY and JOHN DOES, Defendants.

          ORDER

          J.P. STADTMUELLER, U.S. DISTRICT JUDGE

         This case comes before the Court on Defendants' motion for summary judgment, after a somewhat tortured procedural background. For the reasons stated below, the Court is constrained to deny the motions to appoint counsel and to compel. Additionally, Defendants' motion for summary judgment will be granted and the case will be dismissed.

         1. PROCEDURAL BACKGROUND

         Plaintiff filed the above-captioned litigation on September 29, 2017. (Docket #1). On October 19, 2017, Magistrate Judge William E. Duffin allowed Plaintiff to proceed on Fourteenth Amendment claims against Lieutenant Staat, Officer Hunter, and several other Doe defendants for physical and verbal abuse sustained during his booking at Milwaukee County Jail (“MCJ”). (Docket #5 at 5). Magistrate Duffin also allowed Plaintiff to proceed on a Monell claim against Milwaukee County for a custom of beating inmates on elevator rides and engaging in a code of silence thereafter. Id. at 7. The case was reassigned to Judge Lynn Adelman on January 2, 2018.

         That same day, Plaintiff filed a motion to compel, (Docket #15), in which he requested video images that he claimed consisted of him being beaten, moved around the jail in a wheelchair, and subsequently stitched up by a nurse. Id. at 1. Plaintiff also requested the names and photos of the officers who worked on the day of the incident, as well as the nurses who were on staff at the time. Id. Defendants timely opposed the motion on the grounds that they had never received any initial discovery requests, so the motion to compel was premature. (Docket #19 at 1). Defendants also explained that Plaintiff had failed to comply with Civil Local Rule 37, which requires written certification of a good faith attempt to confer with the opposing party about discovery disputes. Id. at 2. On March 2, 2018, during a scheduling conference at which Plaintiff failed to appear, Judge Adelman denied the motion to compel as premature. (Docket #27).

         At a second, more successful scheduling conference on March 19, 2018, Judge Adelman advised Plaintiff to find counsel to represent him in the matter. (Docket #28). Two days later, Judge Adelman issued a trial scheduling order, which set a deadline to join additional parties and amend the pleadings for May 1, 2018. (Docket #29). Dispositive motions were due on December 30, 2018. Id.

         The case progressed without further involvement of the Court. Plaintiff did not move to join additional parties or amend his pleadings, nor did he file his expert disclosures. The docket was completely silent until November 29, 2018 when, pursuant to the scheduling order, Defendants filed their expert witness list. (Docket #30). A week later, Plaintiff filed a motion to appoint counsel, in which he explained that he had had difficulty securing counsel because no law firm was “willing to go up against the city.” (Docket #32 at 1). He explained that he had contacted all the lawyers on a list provided by Judge Adelman, conducted his own research, and struck out. Id. However, he did not provide any proof that he reached out to these law firms, nor did he assert that the case was complex, nor did he explain why he was incapable of carrying on the litigation himself. See id.

         A week after that, with the summary judgment deadline looming at the end of the month, Plaintiff filed a motion for reconsideration of the original motion to compel production of the video footage. (Docket #34). In this motion, he asked Judge Adelman to step down because he was prejudiced and minimized Plaintiff's injuries. Id. at 1. He also moved to add Officer Rashed Farrakhan as a defendant, whose identity Plaintiff discovered on the news, and who, Plaintiff claims, was in the room during his beating, even though Defendants did not include him on their witness list. (Docket #34 at 1-3). On December 20, 2018, Plaintiff filed a motion, which remains pending, to extend the discovery deadline. (Docket #35).

         On December 31, 2018, Defendants filed a motion for summary judgment. (Docket #36). Ten days later, Defendants' counsel filed a letter with the Court requesting an extension of Plaintiff's deadline to respond to the motion for summary judgment. (Docket #45). Defendants explained that there was a chance that Plaintiff may not have received the motion for summary judgment due to an issue with his mailing address. Id. The Court granted this motion for an extension, and Plaintiff was ordered to oppose summary judgment by February 11, 2019. (Docket #50). Plaintiff's motion to extend the discovery deadline was left unresolved. See (Docket #35).[1]Plaintiff never opposed the motion for summary judgment, and on February 25, 2019, Defendants filed a letter indicating that they would not be filing a reply in light of the lack of response. (Docket #51).

         The following month, on March 13, 2019, Defendants filed a letter to the Court stating that Plaintiff had a new address about which he had failed to update the Court. (Docket #53 at 1). Defendants also drew the Court's attention to an email in which Plaintiff made accusations of unethical conduct against both Defendants and Judge Adelman. Id. Finally, Defendants provided evidence that they had sent the much-sought-after video surveillance evidence to Plaintiff, despite Plaintiff's claims that he never received it. (Docket #54-2).

         In response to the allegations of unethical conduct against the Court, Judge Adelman recused himself and the matter was randomly re-assigned to this branch of the Court. On March 22, 2019, after the case was reassigned, Plaintiff filed a profanity-laced letter addressed to Judge Adelman, expressing his frustration with the litigation and the fact that the Doe defendants had not yet been named. (Docket #57 at 1-3). That same day, he filed a letter addressed to Judge Stadtmueller, in which he described his frustration with the litigation in more diplomatic terms. (Docket #58). In this motion, he requested to add four additional officer defendants. Id. at 3. Defendants opposed this request as untimely and provided some background on the discovery process, including the fact that Plaintiff failed to provide initial disclosures or respond to requests for admission, and only filed his own discovery requests ten days before the summary judgment deadline. (Docket #59 at 3-4). In light of the motion's untimeliness and Plaintiff's failure to litigate according to the terms of the scheduling order, that motion will be denied. Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994) (“pro se litigants are not entitled to a general dispensation from the rules of procedure or court imposed deadlines.”).

         On May 20, 2019, Plaintiff filed another motion to compel video surveillance and notice of change of address. (Docket #61). He explained that MCJ had records of the names of the inmates who could testify to the amount of blood he lost, and vented that Defendants have not been forthcoming about the identities of the other officers who were in the booking room when he was assaulted. Id. Again, Defendants opposed this on the grounds that Plaintiff did not timely file discovery requests and failed to comply with Civil Local Rule 37. (Docket #62). That motion will be denied for the reasons explained in Section 3, infra.

         2. MOTION FOR APPOINTMENT OF COUNSEL

         2.1 Legal Background

         As a 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).

         While framed in terms of the plaintiff's capacity to litigate, this discretion must also be informed by the realities of recruiting counsel in this District. When the Court recruits a lawyer to represent a pro se party, the lawyer takes the case pro bono. Unlike a lawyer appointed to represent a criminal defendant during his prosecution, who is paid by the government for his work, an attorney who takes a pro se civil case pro bono has no promise of compensation.

         It is difficult to convince local lawyers to take such cases. Unlike other districts in this Circuit, see, e.g., L.R. 83.35 (N.D. Ill.), the Eastern District of Wisconsin does not employ an involuntary appointment system for lawyers admitted to practice here. Instead, the District relies on the willingness of lawyers to sign up for the Pro Bono Attorney Panel and, once there, accept appointments as needed. See Pro Bono Program, available at: http://www.wied.uscourts.gov/pro-bono-fund.

         The District is eternally grateful to the lawyers who participate in the Pro Bono Program, but there are never enough volunteers, and those who do volunteer rarely take more than one or two cases a year. This is understandable, as many are already busy attending to fee-paying clients. Though the Pro Bono Program does provide for payment of certain litigation expenses, it does not directly compensate a lawyer for his or her time. Participants may seek attorney's fees when permitted by statute, such as in successful Section 1983 cases, but they will otherwise go unpaid. The small pool of attorneys available to this District for pro bono appointments stands in stark contrast to that of the Court of Appeals, which regularly recruits counsel from across the nation to represent pro se plaintiffs on appeal. See, e.g., James, 889 F.3d at 323 (appointing counsel from Washington, D.C. to represent the pro se appellant); McCaa, 893 F.3d at 1029 (same).

         2.2 Analysis

         With these considerations in mind, the Court returns to the question presented: whether counsel can and should be appointed to represent Plaintiff. First, the Court asks whether the litigant has made “reasonable” efforts to obtain his own representation. Pruitt, 503 F.3d at 655; Jackson v. Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). It is a question not often litigated; many district judges either overlook arguably unreasonable efforts at obtaining counsel, or they impose eminently practical requirements such as the submission of evidence demonstrating that the litigant has tried and failed to secure representation from several lawyers. See, e.g., Kyle v. Feather, No. 09-cv-90-bbc, 2009 WL 2474627, at *1 (W.D. Wis. Aug. 11, 2009).

         The first element of Pruitt is fairly easy to satisfy, but it is not toothless, and it is not a mere technical condition of submitting a certain number of rejection letters. If it was, then a Wisconsin pro se plaintiff litigating a Section 1983 action could submit rejection letters from ten randomly selected criminal defense lawyers from Nevada and call his work complete. This cannot be tolerated. The purpose of the reasonable-efforts requirement is to ensure that if the Court and private lawyers must expend scarce resources to provide counsel for a pro se litigant, he has at least made a good-faith effort to avoid those costs by getting a lawyer himself. To fulfill this duty, a pro se litigant should reach out to lawyers whose areas ...


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