United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
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.
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.
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).
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.
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.
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).
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).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).
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.
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.”).
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.
MOTION FOR APPOINTMENT OF COUNSEL
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).
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
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:
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
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).
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 ...