United States District Court, E.D. Wisconsin
WILLIAM E. DUFFINJ U.S. MAGISTRATE JUDGE
Gregory Atwater has filed a “motion to object to the
dismissal of defendants from his complaint” (ECF No.
46), which again contests the court's dismissal at
screening of defendants Trunnell, Prince, and Obiora. Atwater
also again requests the appointment of counsel (ECF No. 48)
and additional time to respond to the defendants' motion
to dismiss (ECF No. 47).
Motion to Object
Atwater asserts that the court failed to give him an
opportunity to object to the screening order or notice of the
time in which to file objections, under Fed.R.Civ.P. 72(a).
(ECF No. 46 at 1.) Atwater previously moved for
reconsideration of the court's screening order (ECF No.
11), which the court denied (ECF No. 16). Atwater intends
this latest motion to be “an objection under Rule
72(a)” to the screening order. (ECF No. 46 at 1.)
consented to magistrate judge jurisdiction. (ECF No. 6.)
Pursuant to a Memorandum of Understanding between the
Wisconsin Department of Justice and this court, the
defendants also consented to the exercise of magistrate judge
jurisdiction for purposes of screening (the defendants
subsequently consented to magistrate judge jurisdiction for
all purposes). The case was not “referred to a
magistrate judge” under Rule 72(a). Therefore, Atwater
has no right to object to this court's screening order
under Rule 72(a).
motion could be construed as having been filed pursuant to
Fed.R.Civ.P. 60(b), which permits a party to obtain relief
from an order based on several grounds, including mistake or
inadvertence, newly discovered evidence, fraud, a defect in
the judgment, or for any other reason justifying relief.
See Fed. R. Civ. P. 60(b)(1)-(6). But Atwater does
not raise any of those grounds in his motion. He merely
contests the court's characterization of his claims and,
as he did in his motion for reconsideration, reiterates the
allegations from his complaint against the dismissed
defendants. The court previously reaffirmed its screening
order in denying Atwater's motion for reconsideration.
(ECF No. 16 at 2.) Atwater does not provide any reason under
60(b) for the court to alter that decision or its screening
Appointment of Counsel
Atwater, for the second time, requests the appointment of
counsel. (ECF No. 48.) He asserts that he cannot afford
counsel, has unsuccessfully asked attorneys to represent him
in this case, has an eleventh-grade education and no legal
training, and has limited resources because he is
incarcerated. (Id. at 1-2.) Atwater also reiterates
that he has limited use of his left hand because of surgery
he had in June 2010. (Id. at 3.) Finally, he asserts
that, because he recently was transferred to a different
institution, he no longer has access to the jailhouse lawyer
who previously assisted him. (Id.)
court discussed in its previous order, the court has the
discretion in civil cases to recruit counsel for individuals
unable to afford counsel. Navejar v. Iyola, 718 F.3d
692, 696 (7th Cir. 2013); 28 U.S.C. §1915(e)(1); Ray
v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67
(7th Cir. 2013). “[D]eciding whether to recruit counsel
‘is a difficult decision: Almost everyone would benefit
from having a lawyer, but there are too many indigent
litigants and too few lawyers willing and able to volunteer
for these cases.'” Henderson v. Ghosh, 755
F.3d 559, 564 (7th Cir. 2014) (quoting Olson v.
Morgan, 750 F.3d 708, 711 (7th Cir. 2014)).
exercising its discretion, the court must consider two
things: “(1) ‘has the indigent plaintiff made a
reasonable attempt to obtain counsel or been effectively
precluded from doing so,' and (2) ‘given the
difficulty of the case, does the plaintiff appear competent
to litigate it himself?'” Pennewell v.
Parish, 923 F.3d 486, 490 (7th Cir. 2019), (quoting
Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007)).
To satisfy the first prong, the court must determine that a
plaintiff made a good faith effort to hire counsel.
Pickett v. Chicago Transit Authority, 930 F.3d 869,
871 (7th Cir. 2019). To do so, the plaintiff must show he
contacted at least three lawyers and provide the court with
(1) the lawyers' names; (2) their addresses; (3) how and
when the plaintiff attempted to contact the lawyer; and (4)
the lawyers' responses. Id.
considering the second element, the court “must examine
the difficulty of litigating specific claims and the
plaintiff's individual competence to litigate those
claims without counsel.” Pennewell, 923 F.3d
at 490. The court looks at “whether the difficulty of
the case, factually, legally, and practically, exceeds the
litigant's capacity as a layperson to coherently litigate
the case.” Id. This includes “all tasks
that normally attend litigation, ” such as
“evidence gathering, preparing and responding to court
filings and motions, navigating discovery, and putting on a
trial.” Id. at 490- 491. The court “must
consider the plaintiff's literacy, communication skills,
education level, litigation experience, intellectual
capacity, psychological history, physical limitations and any
other characteristics that may limit the plaintiff's
ability to litigate the case.” Id. at 491. In
situations where the plaintiff files his motion in the early
stages of the case, the court may determine that it is
“impossible to tell whether [the plaintiff] could
represent himself adequately.” Pickett 930
F.3d at 871.
court previously determined that Atwater has satisfied the
first of these two elements by showing that he has
unsuccessfully attempted to find counsel on his own. (ECF No.
16 at 3.) The court also noted that, in his communications
with the court, Atwater showed he is capable of proceeding
with discovery without an attorney. (Id. at 4.)
Atwater's current motions provide a factual basis for his
arguments and present sophisticated analyses, including the
use of rules and case law, in support of those arguments.
These motions continue to demonstrate his capacity to
litigate this case on his own at this juncture. As the case
progresses, if the legal and factual issues become too
complex for him, or if he is unable to get the information he
believes he needs to prove his claims, he may again raise his
request for a lawyer. Atwater is reminded that, as he has
done here, he may request additional time to prepare
documents or meet other deadlines because of his injury if he
determines that he needs it. The court also may hold a
hearing in the future, if needed, to determine if
Atwater's hand injury prevents him from litigating this
matter on his own.
Extension of Time, Request for Discovery
has requested additional time to respond to the
defendants' motion requesting partial summary judgment
and to dismiss. (ECF No. 47.) Defendants do not object to his
request. (ECF No. 49 at 2.) The court will ...