United States District Court, E.D. Wisconsin
Stadtmueller United States District Judge.
case comes before the Court on Plaintiff's allegations
that his constitutional rights were violated when he was
denied medical care at Racine Correctional Institution
(“RCI”) and Fox Lake Correctional Institution
(“FLCI”). (Docket #23). On June 13, 2019, the
Court denied Plaintiff's motion to appoint counsel as
premature, explaining that it would not entertain such
motions until the close of discovery. (Docket #71). Discovery
closed on July 25, 2019, and Defendants recently filed a
motion for summary judgment. See (Docket #83).
Plaintiff has filed two more motions to appoint counsel.
(Docket #72 and #77). They are substantially similar,
although the second motion contains more detail as to
Plaintiff's efforts to secure counsel and his concerns
about proceeding in the litigation pro se.
Therefore, the Court will deny the earlier motion as moot,
and consider the motion that was filed later in time.
Ultimately, it, too, will be denied. Finally, Plaintiff filed
a motion to compel. (Docket #74). For the reasons explained
below, that will be denied as well.
MOTION TO APPOINT 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 prisoner's civil case pro bono has no promise
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
the thin ranks of ready and willing counsel rises the
overwhelming tide of pro se prisoner litigation in
this District. In 2010, approximately 300 civil actions
were filed by prisoner litigants. More than half sought
habeas corpus relief, while the remainder were Section 1983
actions alleging violations of constitutional rights. Since
then, the number of habeas corpus cases has remained largely
steady at around 130 per year, while the volume of Section
1983 lawsuits has skyrocketed. About 300 Section 1983 actions
were filed in 2014, and another 300 in 2015-each equal to the
entirety of the District's civil prisoner filings from
just four years earlier. In 2016, Section 1983 actions
numbered 385, in 2017 it ballooned to 498, and in 2018 it
grew to 549. All told, well over a third of the
District's new case filings are submitted by
unrepresented inmates. On its best day, this District has the
resources to realistically consider appointment of counsel in
only a tiny fraction of these cases.
it must be remembered that when the Court determines that
counsel recruitment is appropriate, it can take months to
locate a willing lawyer. This delay works to the detriment of
all parties and contravenes Congress' instruction in
Federal Rule of Civil Procedure 1 that district courts must
endeavor to secure the “just, speedy, and inexpensive
determination of every action.” Fed.R.Civ.P. 1. Thus,
looming large over each request for counsel are the
Court's ever-more-limited time and resources.
these considerations in mind, the Court returns to the
question presented: whether counsel can and should be
recruited to represent Plaintiff at this stage in this case.
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 prisoner
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,
states that he has contacted six attorneys to represent him
in this case. (Docket #77 at 1). He has not provided their
full names, nor has he attached proof of mailing, nor has he
indicated which practice areas these attorneys specialize in.
In short, Plaintiff has not provided the Court with
sufficient information to infer that he has made reasonable
efforts to secure counsel.
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 prisoner 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 ...