Appeal from the United States District Court for the Eastern District of Wisconsin. No. 78-C-427 -- Robert W. Warren, Judge.
Bauer, Posner, Circuit Judges, and Larson,*fn* Senior District Judge. Posner, Circuit Judge, dissenting.
LARSON, Senior District Judge.
This is an action by an indigent state prisoner under 42 U.S.C. § 1983 (1976) for alleged deprivations of constitutional rights. Plaintiff-appellant Dean Justin McKeever is an inmate at the Waupun correctional facility operated by the Wisconsin Department of Health and Social Services. Defendant-appellee Thomas Israel is the Warden at Waupun. Defendant-appellee Gregory Hilt is a correctional officer at the prison.*fn1 We reverse the judgment of the district court and remand for appointment of counsel and further proceedings consistent with this opinion.
In his pro se complaint filed July 10, 1978, McKeever alleged that a prison policy forbidding a prisoner from taking in excess of 12 pieces of legal or social mail when he left the prison violated the First, Fourth, and Fourteenth Amendments to the United States Constitution and that property belonging to McKeever had been lost, destroyed, or stolen, in violation of the Fourth, Eighth, and Fourteenth Amendments. McKeever sought a declararation that the acts of the defendants had violated his constitutional rights and an injunction on his own behalf and on behalf of all other inmates to prohibit the mail and property policies. He also sought an injunction requiring the return of his property, or in the alternative, compensatory and punitive damages. Finally, McKeever sought an injunction to prohibit prison officials from retaliating against him for bringing this suit. The district court granted plaintiff leave to file his suit in forma pauperis under 28 U.S.C. § 1915(a) (1976). Because the trial court denied McKeever's motions for appointment of counsel, the plaintiff represented himself throughout the proceedings below.
The claims evolved over a long series of pretrial motions. As ultimately defined by the district court, the question for determination at trial was narrowed to "the single issue of whether the defendant Hilt, on December 1, 1977, wrongfully forced plaintiff to separate 23 letters from the ones he had taken out of the prison to a court appearance." Docket Entry [hereinafter Doc.] 49. McKeever maintains that he left the prison on November 29, 1977, for a state court hearing on the modification of his sentence with 35 character reference letters in his possession. He claims that upon his return to the prison he was forced to "separate" 23 letters, 15 of which were never returned to him.*fn2
A court trial on the question of the missing letters was held on November 7, 1980. At the close of the plaintiff's case, the district court granted defendant's motion for involuntary dismissal. In granting this motion, the trial judge emphasized that plaintiff's "Complaint says one thing and his sworn testimony says another." Transcript [hereinafter Tr.] 167. In his amended complaint plaintiff stated that on December 1, 1977, Hilt had prevented McKeever from taking more than 12 letters back to his cell after the state court appearance, while at trial in the federal district court McKeever admitted that he had no contact with Hilt on December 1, 1977. The trial judge cited numerous other grounds for granting defendant's motion for involuntary dismissal, including the lack of any showing of proximate cause between the loss of the letters and McKeever's inability to gain a modification of his sentence.
McKeever filed his in forma pauperis appeal pro se,*fn3 and we appointed counsel to represent him before this Court.*fn4 The focus of the arguments on appeal has been the trial court's refusal to appoint counsel for the plaintiff. McKeever maintains that the district court erred in not recognizing its authority to appoint counsel under 28 U.S.C. § 1915(d) (1976) and hence in entirely failing to exercise its discretion. Moreover, McKeever argues that it was an abuse of discretion not to appoint counsel when plaintiff stated a meritorious claim and the other factors specified by this Court in Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir. 1981), were present. McKeever requests this Court to reverse the judgment of the district court and to remand with instructions for the appointment of counsel.
Defendants respond that there was no abuse of discretion because section 1915(d) merely allows the district court to "request" rather than "appoint" counsel for an indigent civil litigant. Further, defendants maintain that even if the statute provides authority to appoint counsel, the district court did not abuse its discretion under Maclin. Finally, defendants argue that if the district court abused its discretion in failing to recognize its power to appoint counsel under section 1915(d), the proper remedy would be to allow the district court to exercise its discretion on remand.
Beyond the appointment of counsel issue, McKeever alleges a number of additional grounds for reversal:
1. The district court erred by not exercising its discretion under 28 U.S.C. § 1915(c) (1976) to order the payment out of government funds of the fees of witnesses subpoenaed by an indigent party;*fn5
2. the district court abused its discretion by not allowing plaintiff to amend or supplement his complaint with allegations contained in plaintiff's affidavit filed September 13, 1978, concerning beatings by guards, denial of necessary medicine, and other serious incidents of physical abuse in retaliation for the filing of this suit;
3. the court below erred in granting Warden Israel's motion for summary judgment on plaintiff's claim of an alleged prison policy limiting the amount of mail a prisoner could take to or back from court appearances when the trial judge did not provide plaintiff with the notice of the need to file a counter-affidavit in response to Israel's statement that no such policy existed;*fn6
4. the district court erred in failing to grant or at least to hold an expedited hearing on plaintiff's motion for a preliminary injunction against retaliation for filing this lawsuit when plaintiff's affidavit of September 13, 1978, detailed incidents of retaliation and defendants failed to submit any counter-affidavits;
5. the enactment by Congress of the Civil Rights of Institutionalized Persons Act, § 7, 42 U.S.C. § 1997e, (Supp. IV 1980), during the pendency of this lawsuit requires vacation of the district court's order dismissing McKeever's claims for confiscation of property for failure to exhaust state administrative remedies;*fn7 and
6. the district court abused its discretion in awarding defendants $200 in attorney's fees plus costs when McKeever was an indigent prisoner proceeding pro se and his claim was not frivolous, unreasonable, or without foundation.
Defendants have inexcusably failed to brief any of these additional issues, asserting that McKeever's arguments for reversal are without merit and that the district ...