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Evans v. Douglas

United States District Court, E.D. Wisconsin

November 22, 2019

MARKUS EVANS, Plaintiff,
ABIE DOUGLAS, et al., Defendants.


          Lynn Adelman United States District Judge.

         Plaintiff Markus Evans is proceeding on claims against seven defendants involving his treatment as a pretrial detainee from March 28, 2011, through May 30, 2011. On June 11, 2019, I ordered the parties to complete discovery by August 1, 2019, and to file dispositive motions by September 3, 2019. Docket No. 59. The plaintiff has filed several motions that I will address in this order.


         On July 25, 2019, the plaintiff moved for the appointment of counsel. Docket No. 61. He asserts that counsel is warranted in this case because the facts and issues are complex, testimony from a medical expert will be necessary, he has a limited ability to investigate because he is on indefinite administrative confinement, his view of the facts will differ from the defendants', and he in indigent and lacks legal training. Id. at 2-4.

         In a civil case, I have the discretion 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)).

         In exercising this discretion, I 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 et al., 923 F.3d 486, 490 (7th Cir. 2019), (quoting Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007)). To satisfy the first element, 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.

         In particular, the lawyers' responses may have bearing on the court's decision to exercise its discretion because they may shed light on whether the plaintiff's attempts to hire counsel were reasonable. Pickett, 930 F.3d at 871. In deciding whether to recruit counsel, the court should consider the reasons the lawyer declined representation, including whether the plaintiff was unwilling (as opposed to unable) to pay a retainer; whether the lawyer lacked time or capacity to take on new clients; or whether the subject matter of the case requires a lawyer who specializes in a specific area of law. Id. The court should also consider how well the plaintiff articulated his case to the prospective lawyer. Id. Where a plaintiff “conveyed his situation well and counsel deemed the claim feeble, then it would be inappropriate for a court to intervene” and recruit counsel. Id. But, where a plaintiff is inarticulate, then a court “may have a useful role to play in recruiting counsel.” Id.

         When considering the second element, I “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. A 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. I “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.

         The plaintiff has submitted letters from three attorneys or law firms denying his request for legal assistance. He therefore satisfies the first element.

         But he has not satisfied the second element. The plaintiff sued numerous defendants in this case, and I allowed his claims against seven of those defendants to proceed. The facts and law are not as complicated as the plaintiff makes them out to be. He alleges that defendants cut off his clothes and placed him on a restraint bed for four hours, later returned him to his cell naked and still in restraints, and denied him bedding or covers, personal hygiene times, and water. He alleges that other defendants approved his improper treatment and the improper use of handcuffs, which injured his wrists. He does not assert a claim of inadequate medical treatment, so a medical expert's testimony likely will not be necessary.

         Moreover, the plaintiff's filings through this case have demonstrated his ability to comprehend the issues involved and to articulate his arguments in his filings. He explains that he has received assistance from another inmate at a different facility, but that circumstance also is not unique to this plaintiff or this lawsuit. The plaintiff's filings and motion do not demonstrate that he lacks the competence to proceed in this lawsuit at this time without the assistance of counsel.

         The prospect of responding to the defendants' lengthy summary-judgment filings may be daunting, but that challenge exists in every lawsuit, not just ones filed by indigent prisoners. As noted, every indigent defendant who lacks legal training could use the assistance of counsel, so that this plaintiff is in that boat does not alone warrant appointment of counsel. Nor does his assertion that his view of the facts will differ from the defendants'. That difference of opinion is part of nearly every lawsuit. If the plaintiff is correct that material differences exist, and these differences are supported by facts and evidence, then summary judgment likely will be denied. If that occurs, and if the case proceeds to mediation or trial, I may revisit the plaintiff's request for counsel.


         The plaintiff moves to compel the defendants to produce certain items of discovery. Docket No. 69. He asserts that the defendants electronically filed the discovery documents but then purposefully mailed them to the wrong address to prevent the plaintiff from receiving them. Id. at 2. The plaintiff has been sending his legal papers to an inmate at another facility for assistance in this case. Id. He asserts that the delay caused by the defendants' mis-mailing hindered his legal assistance from the other inmate. Id. He also asserts that he did not receive a notice of his deposition until three or four days before the deposition was to occur, which he contends is not reasonable notice. Id. at 4-5. The plaintiff asserts that the defendants refused to respond to interrogatories he sent on July 10, 2019, because discovery in this case closed on August 1, 2019. Id. at 5-6. The plaintiff contends ...

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