Williams v. Cooper

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

DEVIN D. WILLIAMS, Plaintiff, Case No. 24-CV-768-JPS

v.

JORDAN COOPER, MICHAEL LAZARIS, and JOSHUA SCHENK, ORDER Defendants.

Plaintiff, Devin D. Williams, a prisoner, brings this action under 42 U.S.C. § 1983 pro se. On October 17, 2024, pursuant to 28 U.S.C. § 1915A, the Court screened his complaint and identified which claims may proceed. ECF No. 7. On January 30, 2025, the Court entered a scheduling order with discovery to be completed on or before July 1, 2025 and summary judgment to be filed on or before September 2, 2025. ECF No. 17. On February 4, 2025, Plaintiff filed a proposed amended complaint. ECF No. 18. Pending before the Court are Plaintiff’s three motions to appoint counsel. ECF Nos. 20, 21, 22. First, the Court will instruct the Clerk of Court to strike the proposed amended complaint. Federal Rule of Civil Procedure 15 allows amendment once as a matter of course within twenty-one days after service of a responsive pleading. Fed. R. Civ. P. 15(a)(1). Here, Plaintiff’s proposed amended complaint is not allowed as a matter of course because it was filed more than twenty-one days after Defendants answered the complaint. See ECF Nos. 14, 18. Rule 15 also provides that a Court should freely grant leave to amend when justice so requires. Civil Local Rule 15 requires that a motion to amend a complaint notify the court of the proposed changes and the proposed amended complaint be filed as an attachment to the motion. Should Plaintiff wish to file a motion to amend the complaint, Plaintiff should identify the difference between his operative complaint and his proposed amended complaint. He also must attach his proposed amended complaint to his motion. The amended complaint must be complete in and of itself, without reference to or reliance on prior complaints. Second, the Court will deny Plaintiff’s motions to appoint counsel without prejudice. 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). Against the thin ranks of ready and willing counsel rises the overwhelming tide of pro se prisoner litigation in this District.1 In 2010,

1Although non-prisoner pro se litigants may also be considered for the appointment of counsel under § 1915, the Court does not address that set of pro se litigants here for a few reasons. First, the volume of non-prisoner pro se litigation is miniscule compared to that brought by prisoners. Second, prisoners are much more likely to request the appointment of counsel. Paradoxically, prisoners are usually far better equipped to litigate than non-prisoners, as prisoners have access approximately 300 civil actions were filed by prisoner litigants. More than half sought habeas corpus relief, while the remainder were § 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 § 1983 lawsuits has skyrocketed. About 499 § 1983 actions were filed in 2022, and another 571 in 2023—each significantly more than the entirety of the District’s civil prisoner filings from years earlier. In 2024, § 1983 actions numbered 582. 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. Finally, 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

to electronic filing, institution law libraries, and fellow prisoners who offer services as “jailhouse lawyers.” Yet, learning a little of the legal system means that prisoners know they can request the appointment of pro bono counsel, which they do with regularity. 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 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, 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 prisoner 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 provides evidence that he has attempted to secure counsel in this matter. He includes copies of the rejection letters from law firms that he received in response to his request. ECF No. 22-1. The Court is therefore satisfied that Plaintiff has met the first Pruitt factor to attempt to secure counsel on his own. 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 prisoners. 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. 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 F. App’x 461, 462 (7th Cir. 2017); Milton v. Slota, 697 F. App’x 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 prisoner 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. Plaintiff indicates that he has partial epilepsy and tremors that make his handwriting difficult to read. ECF No. 20. It is true, as Plaintiff intuits, that a lawyer would be helpful in navigating the legal system; trained attorneys are of course better positioned to successfully litigate cases. 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 has assisted Plaintiff in this regard (as it does with all prisoner 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. Plaintiff has not demonstrated that his case is exceptional to require counsel. The Court has thus far been able to decipher Plaintiff’s handwriting. The Court will therefore deny Plaintiff’s motion, without prejudice, and if the case proceeds past summary judgment, the Court will reconsider any renewed motion for counsel at a later time. Finally, the Court will deny Plaintiff’s motion for mediation. ECF No. 20. The Court refers cases to a magistrate judge for the purposes of mediation only when both parties jointly request mediation. To the extent the parties seek mediation, they must therefore file a joint request. Accordingly, IT IS ORDERED that Plaintiff’s motions to appoint counsel, ECF Nos. 20, 21, 22, be and the same are hereby DENIED without prejudice; IT IS FURTHER ORDERED that the Clerk of Court shall STRIKE Plaintiff’s proposed amended complaint, ECF No. 18; and IT IS ORDERED that Plaintiff’s motion for mediation, ECF No. 20, be and the same is hereby DENIED. Dated at Milwaukee, Wisconsin, this 5th day of June, 2025. BY THE \ — DS A — Ney SYK: Cz J.R. Stad of ueller U.S» Disttict Judge

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