Liu v. Rhoades
| Decision Date | 10 February 2015 |
| Docket Number | 12-cv-288-wmc |
| Court | U.S. District Court — Western District of Wisconsin |
| Parties | WENFANG LIU, Plaintiff, v. KITTY RHOADES and ELOISE ANDERSON, Defendants. |
In this case brought under 42 U.S.C. § 1983, plaintiff Wenfang Liu has been granted leave to proceed on claims for declaratory and injunctive relief against the secretaries of the Wisconsin Department of Health Services ("DHS") and Wisconsin Department of Children and Families ("DCF") for incorrectly interpreting the federal Food Stamp Act, 7 U.S.C. § 2011 et seq., and concluding that Liu received an $1,800 overpayment of food stamp benefits.1
Currently before the court are Liu's motions for the court's assistance in recruiting counsel and defendants' motion for summary judgment. Both in answering the complaint and in seeking summary judgment, defendants concede that they erred in determining Liu to be ineligible to receive $1,400 of the $1,800 disputed benefit, so the bulk of Liu's damage claim is now effectively moot. After reviewing the parties' summary judgment submissions, the court further concludes that no reasonable trier of fact could find for Liu on her claim regarding the remaining $400 and will enter judgment in defendants' favor.
As a preliminary matter, Liu filed a series of motions asking for court-appointed legal counsel, stating that she cannot afford to hire a lawyer and that she believes that her English is not sufficient to her to litigate the case herself. (Dkt. #8, #11 and #23.) Liu should be aware that civil litigants have no constitutional or statutory right to the appointment of counsel. E.g., Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997). The court may, however, exercise its discretion in determining whether to recruit counsel pro bono to assist an eligible plaintiff who proceeds under the federal in forma pauperis statute. See 28U.S.C. § 1915(e)(1) (); Luttrell, 129 F.3d at 936.
Usually, the first step in making such an inquiry is determining whether the plaintiff has made reasonable efforts to find a lawyer on her own and has been unsuccessful, or that she has been prevented from making such efforts. Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992). Liu has not indicated that she has attempted to contact any outside attorneys, which would be reason enough to deny her motions.
An additional factor weighing against recruiting counsel for Liu is her history with recruited counsel in this court. The court recruited counsel to represent Liu in a case against her ex-husband to enforce the terms of an affidavit of support under the Immigration and Nationality Act ("INA"), Liu v. Mund, 09-cv-500-wmc (W.D. Wis.), but ultimately allowed counsel to withdraw after Liu made it clear that she no longer wished to be represented. There is little reason to think that Liu would get along better with any new counsel the court might recruit for this case.
Even if Liu made appropriate attempts to locate outside counsel and had no history of firing court-recruited counsel, the court would deny her motions because she does not meet the final step of the analysis: determining "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 [her]self." Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007). A court may consider any or all of the following five factors when making this determination: (1) the merits of the claim for relief; (2) the ability ofplaintiff to investigate crucial facts unaided; (3) whether the nature of the evidence indicates the truth will more likely be exposed when both sides have counsel; (4) the indigent person's capability to present the case; and (5) the complexity of the legal issues involved. Jackson, 953 F.2d at 1072.
As the opinion below explains in detail, this case is not a particularly complicated one. Rather, it involves the application of statutes and regulations to undisputed facts regarding Liu's various qualifications for food stamp eligibility and the question of who is responsible for reimbursement of an overpayment of benefits. Moreover, although Liu's English is not perfect and her filings can be somewhat unfocused, the nature of her argument is straightforward enough. This court has also had sufficient interaction with Ms. Liu over the course of multiple lawsuits to conclude that she is very bright, determined to a fault and fully capable of insuring that her claims are understood, both factually and legally. In this case, the problem for Liu is that she misstates some key points about the Food Stamp Act, leading her to incorrectly conclude that she is entitled to relief from the state's collection efforts with respect to the remaining $400 in dispute. Recruiting counsel would not materially alter this analysis.
Plaintiff Wenfang Liu is a Chinese national with permanent resident status in the United States. She legally entered this country in October 2007 and, at all times material to this lawsuit, has resided in Wisconsin. Defendant Kitty Rhoades is the secretary of the Wisconsin Department of Health Services ("DHS"). Defendant Eloise Anderson is the secretary of the Wisconsin Department of Children and Families ("DCF").
At the time Liu entered the United States, she was over the age of 18. Shortly after arriving to the United States, Liu was divorced from her husband and sponsor, Timothy John Mund. Mund must still comply with his I-864 affidavit of support, under which he agreed to support Liu at 125 percent of the poverty level unless she has earned sufficient income to do so herself. At all times material to the complaint, Liu has remained unemployed and has no other source of income.
For approximately two years prior to August 2011, Liu received "FoodShare" benefits from the State of Wisconsin. This program is governed by the federal Supplemental Nutrition Assistance Program and attendant regulations, which was formerly called and is still colloquially known as the "food stamp" program. During the time Liu received FoodShare, federal law restricted the federal food stamp eligibility of aliens with permanent status in the United States to persons who were both "qualified" and "eligible" as those terms were defined by federal regulations. 7 C.F.R. § 273.4(a)(6)(i)-(iii). Providing something of a "safety net" during this same time, Wisconsin law expressly allowed the issuance of FoodShare benefits to qualified alienswho were ineligible for food stamp benefits under federal law.3 In June 2011, however, the Wisconsin Legislature amended Wis. Stat. § 49.79(8) to read that DHS "shall not provide [FoodShare] benefits under this section to a qualified alien, except to the extent that federal food stamp benefits for qualified aliens are required by the federal government." Wis. Stat. § 49.79(8) (2013-14) (emphasis added); 2011 Wis. Act 32 § 1534.
On July 11, 2011, the DHS Enrollment Services Center notified Liu that her "[FoodShare] benefits will be ending on Aug. 01, 2011" in part because she was "not a U.S. citizen or an immigrant who is able to get this benefit." (Dkt. #20, Exh. 1, at 1-2.) The notice informed Liu that she had the right to a "fair hearing" about her benefits if requested by October 31, 2011. (Id. at 4.) The notice further stated that:
Liu filed a timely petition with the Wisconsin Department of AdministrationDivision of Hearings and Appeals ("DHA") on July 21, 2011, under Wisconsin's fair hearing provision, Wis. Admin. Code § HA 3.03, to review the cancellation of her benefits. A hearing on Liu's petition was held August 24, 2011, before Administrative Law Judge ("ALJ") Nancy J. Gagnon. Liu appeared at that hearing.
On September 19, 2011, ALJ Gagnon issued a decision upholding DHS's determination that Liu was no longer eligible for FoodShare benefits because of the change in state law. In particular, the ALJ stated that Liu failed to meet the definition of "eligible alien" under the federal regulations, highlighting the provisions showing that Liu, as an alien over the age of 18 "lawfully admitted for permanent residence under the INA," would be eligible only after five years in the United States, 7 C.F.R. § 273.4(a)(6)(iii)(A), unless she met one of several criteria listed in § 273.4(a)(6)(ii)(A)-(J).4 (Dkt. #19, Exh. 1, at 2-3.) The ALJ concluded that none of those criteria appliedto Liu. Id. at 3. In particular, the ALJ noted Liu's age, unemployed status, her lack of military experience and that she was not disabled.
On September 23, 2011, Liu filed a request for rehearing with DHA, which was denied. In considering that request, ALJ Gagnon addressed Liu's assertion that she was battered by her ex-husband while they were still married in the United States. The ALJ concluded that this did not constitute new evidence warranting a rehearing, because Liu could have addressed the alleged abuse during the original hearing and the rehearing request did not include police or medical reports to corroborate her allegation of abuse. (Liu claims she did raise the abuse issue in the original hearing.) As had the original decision, the decision denying rehearing again advised Liu how to appeal her decisions to the Dane County Circuit Court. Liu continued to receive FoodShare benefits during the pendency of her administrative appeal through October 2011, but did not seek...
To continue reading
Request your trial