United States District Court, E.D. Wisconsin
Adelman United States District Judge.
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
MOTION TO APPOINT COUNSEL
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.
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)).
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.
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
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.
plaintiff has submitted letters from three attorneys or law
firms denying his request for legal assistance. He therefore
satisfies the first element.
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
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.
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.
MOTION TO COMPEL AND FOR SANCTIONS
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