Opinion
20-CV-431-JPS
08-08-2022
TERRANCE J. SHAW, Plaintiff, v. KEVIN CARR, ROBERT KRUEGER, JASON LINGAFELT, MICHELE OBUCINA, JIMMY CRUZ, WILLIAM LANGE, KEITH SPRINGSTUBE, KEITH CHRISTENSEN, SCOTT GUDAL, JUSTIN SCHULLER, and CHRISTIAN STOIBER, Defendants.
ORDER
J. P. STADTMUELLER, U.S DISTRICT JUDGE
On March 19, 2020, Plaintiff filed a complaint under 42 U.S.C. § 1983 alleging that Defendants violated his constitutional rights. ECF No. 1. The Court screened the complaint and allowed Plaintiff to proceed on the following claims:
Claim One: Deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment, when Defendants Mr. Krueger, Sgt. Langafelt, C.O. Obucina, Sgt. Cruz, C.O. Lang, Keith Springstube, C.O. Christianson, Sgt. Gudal, Justin Schuller, and C.O. Stoiber repeatedly took a wheelchair away from Plaintiff; and
Claim Two: Rehabilitation Act claim against Kevin Carr, the current DOC Secretary, in his official capacity.ECF No. 19 at 13.
The Court now turns to Plaintiff's motion to appoint counsel and motion for a protective order, ECF No. 28, and motion to clarify and stating the relief sought, ECF No. 33. For the reasons explained below, the Court will deny Plaintiff's motions.
1. MOTION TO APPOINT COUNSEL
As a 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), a “court may request an attorney to represent any person unable to afford counsel.” A 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 a court's discretion. James, 889 F.3d at 326; McCaa v. Hamilton, 893 F.3d 1027, 1031 (7th Cir. 2018).
While framed in terms of a plaintiff's capacity to litigate, this discretion must also be informed by the realities of recruiting counsel in this District. When a 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 of compensation.
It is 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 in the District. 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: http://www.wied.uscourts.gov/pro-bono-program.
The District is 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. Although 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 § 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 (same).
Additionally, it must be remembered that, when a 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's 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 a court's ever-more-limited time and resources.
With 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, a court asks whether the litigant has made “reasonable” efforts to obtain his own representation. Pruitt, 503 F.3d at 655; Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). It is a question not often litigated; many district court judges either overlook arguably unreasonable efforts at obtaining counsel, or they impose eminently practical requirements such as the submission of evidence demonstrating that the Plaintiff 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).
The 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 Plaintiff litigating a § 1983 action could submit rejection letters from ten randomly selected criminal defense lawyers from Nevada and call his work complete. This cannot be. The purpose of the reasonable-efforts requirement is to ensure that if a court and private lawyers must expend scarce resources to provide counsel for a prisoner, 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 prisoner should reach out to lawyers whose areas of practice suggest that they might consider taking his case. If he learns that some of the lawyers he has contacted do not, he should reach out to others before he concludes that no one will help him.
Plaintiff has submitted some evidence that he contacted six Wisconsin-based attorneys to represent him in the matter. ECF No. 29-1. He includes copies of the rejection letters he received in response. Id. The Court finds this effort sufficient to meet the first Pruitt step.
Plaintiff's request must also succeed on the second Pruitt question: whether the difficulty of the case exceeds his capacity to coherently present it. This assessment must be made in light of the particular capabilities and circumstances presented by each pro se litigant. James, 889 F.3d at 326-27.
The Court of Appeals explains:
The second step is itself grounded in a two-fold inquiry into both the difficulty of the plaintiff's claims and the plaintiff's competence to litigate those claims himself. The inquiries are necessarily intertwined; the difficulty of the case is considered against the plaintiff's litigation capabilities, and those capabilities are examined in light of the challenges specific to the case at hand. Ultimately, the question is not whether a lawyer would present the case more effectively than the pro se plaintiff; if that were the test, district judges would be required to request counsel for every indigent litigant. Rather, the question is whether the difficulty of the case-factually and legally-exceeds the particular plaintiff's capacity as a layperson to coherently present it to the judge or jury himself. Notably, this inquiry extends beyond the trial stage of the proceedings. The relevant concern is whether the plaintiff appears competent to litigate his own claims, given their degree of difficulty. This includes all of the tasks that normally attend litigation: evidence gathering, preparing and responding to motions and other court filings, and trial.Id. (citations and quotations omitted). While a court need not address every concern raised in a motion for appointment of counsel, it must address “those that bear directly” on the individual's capacity to litigate his case. McCaa, 893 F.3d at 1032.
The balancing contemplated in the second Pruitt step must be done against the backdrop that district courts cannot be expected to appoint counsel in circumstances which are common to all or many pro se plaintiffs. See Bracey v. Grondin, 712 F.3d 1012, 1017-18 (7th Cir. 2013); Pruitt, 503 F.3d 647, 656 (observing that the Seventh Circuit has “resisted laying down categorical rules regarding recruitment of counsel in particular types of cases”); Harper v. Bolton, 57 F.Supp.3d 889, 893 (N.D. Ill. 2014). Doing so would place untenable burdens on court resources. It would also turn the discretion of § 1915(e)(2) on its head, making appointment of counsel the rule rather than the exception.
Several pronouncements from the Court of Appeals appear to be in tension with this principle. First, the Seventh Circuit notes that “complexity increases and competence decreases as a case proceeds to the advanced phases of litigation.” James, 889 F.3d at 327. It deems the “[a]dvanced phases” to include those from discovery onward. Id.; McCaa, 893 F.3d at 1032. But nearly every prisoner case proceeds to discovery, as the district court applies exceedingly lenient review during initial screening.
Although Plaintiff was incarcerated at the time he filed the complaint, his current address indicates he is now out of custody. See ECF No. 31.
Second, the Seventh Circuit instructs that district courts should evaluate a prisoner's competency irrespective of the involvement of a “jailhouse lawyer.” McCaa, 893 F.3d at 1033; Walker v. Price, No. 17-1345, 2018 WL 3967298, at *5 (7th Cir. Aug. 20, 2018). How courts should do this is not clear. A court rarely knows whether a filing was prepared by the plaintiff or someone helping him. And if a court does know that the plaintiff is receiving help, how can it assess his ability to litigate without knowing which portions of the filings are his work, and which come from the jailhouse lawyer? In Walker, the court determined that the inmate's work product decreased in quality after his jailhouse lawyer was transferred to another prison. 2018 WL 3967298, at *6. Yet a savvy prisoner, looking to secure counsel for himself, could do this on purpose, crafting his filings to downplay his own litigation capabilities. A court would have no way to assess whether the inmate is sandbagging it.
Finally, the Court of Appeals indicates that claims involving the state of mind of the defendant, such as those involving deliberate indifference, are particularly complex. James, 889 F.3d at 327-28; McCaa, 893 F.3d at 1032. Yet a government official's culpable mental state is the foundation for most constitutional claims. Indeed, it is often the defining characteristic that sets § 1983 claims apart from their state-law tort analogues. Deliberate indifference is essential to nearly all claims of cruel and unusual punishment, excessive force, mistreatment of medical needs, and First Amendment and due process violations. See Kingsley v. Henderson, 135 S.Ct. 2466, 2473 (2015); County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hambright v. Kemper, 705 Fed.Appx. 461, 462 (7th Cir. 2017); Milton v. Slota, 697 Fed.Appx. 462, 464 (7th Cir. 2017) (“[N]egligently inflicted harm does not amount to a constitutional violation.”) (emphasis in original). Taken together, these claims comprise the vast majority of prisoner litigation in this District. If state-of-mind issues are generally beyond the ability of most pro se litigants to prove, then a court likely would need to appoint counsel in nearly every prisoner case. This is plainly impossible.
The guiding rule has always been that appointment of counsel is the exception rather than the rule in pro se litigation. Yet a confluence of all-too-common circumstances-discovery, jailhouse lawyers, and claims concerning state of mind-militate in favor of the appointment of counsel. As the list of reasons to appoint counsel grows, the reasons not to do so shrink. This District's resources have not kept pace.
Against this backdrop, the Court finds that Plaintiff has not presented sufficient evidence and argument showing that he cannot litigate or try this matter competently on his own. In his brief, Plaintiff explains that he is a 100% service-connected Totally and Permanently Disabled Veteran, is full-time wheelchair bound, and has previously been diagnosed with a cognitive impairment. ECF No. 29. He maintains that his case is complex, he will have difficulty managing it, his case will be a credibility contest, and his ability to investigate the facts is hindered by the fact that he is no longer a prisoner. Id. Plaintiff supplements his motion and argues that his cognitive impairments have become more severe. ECF Nos. 31, 32, 33.
It is true, as Plaintiff intuits, that a lawyer would be helpful in navigating the legal system. But Plaintiff's lack of legal training brings him in line with practically every other prisoner or former prisoner litigating in this Court. Further, the Court will assist Plaintiff in this regard (as it does with all pro se litigants) by providing copies of the most pertinent federal and local procedural rules along with its scheduling order. Thus, ignorance of the law or court procedure is generally not a qualifying reason for appointment of counsel. It is unclear why Plaintiff's current location outside prison would render him unable to fact-find and interview witnesses; on the contrary, confined prisoners typically have more difficulty with this aspect as their movement is necessarily restricted by imprisonment. Plaintiff may now have access to free online legal resources (at either a public library or community center) such as https://scholar.google/ which permits searches of federal case law, and law libraries, including the one at the Milwaukee federal courthouse. Plaintiff may also seek limited assistance from the Eastern District of Wisconsin Bar Association Federal Legal Assistance Program. Plaintiff may start this process by completing the online form at https://edwba.org/form.php?form id=15. As such, the Court will deny Plaintiff's motion to appoint counsel. The Court will also deny the motion to clarify as moot as the Court understands Plaintiff's position and has considered all filings in its ruling on his motion to appoint counsel.
2. MOTION FOR PROTECTIVE ORDER
Plaintiff also asks the Court for a protective order. ECF No. 29. Federal Rule of Civil Procedure Rule 26(c) allows for an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” including “requiring that a trade secret or other confidential research, development, or commercial information . . . be revealed only in a specified way.” Fed.R.Civ.P. 26(c)(1)(G); see also Civ. L.R. 26(e).
Protective orders are an exception to the general rule that pretrial discovery must occur in the public eye. Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594, 596 (7th Cir. 1979); Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945-46 (7th Cir. 1999). Litigation must be “conducted in public to the maximum extent consistent with respecting trade secrets . . . and other facts that should be held in confidence.” Hicklin Eng'r, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
Here, Plaintiff's motion only references a protective order in the title of the motion. ECF No. 28. He clarifies in further filings that having his mental health records open to the public would be embarrassing. ECF No. 32. To the extent Plaintiff seeks to restrict access to the health records associated with his motion, the Court will grant that relief. To the extent Plaintiff seeks additional relief, the Court instructs Plaintiff to file a new motion clearly stating the relief he seeks.
Accordingly, IT IS ORDERED that Plaintiff's motion for appointment of counsel, ECF No. 28, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff's motion for a protective order, ECF No. 28, be and the same is hereby GRANTED to the extent discussed in this Order. The Clerk of Court shall restrict access to the filing at ECF No. 29-1 to the Court and case participants; and
IT IS FURTHER ORDERED that Plaintiff's motion to clarify and stating the relief sought, ECF No. 33, be and the same is hereby DENIED as moot.