DAVIS v. OFFICER HARTLEY

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION

JERRY T. DAVIS, ) ) Plaintiff, ) ) v. ) No. 4:23-cv-00031-TWP-KMB ) OFFICER HARTLEY, ) ) Defendant. )

ORDER DENYING WITHOUT PREJUDICE MOTION FOR ASSISTANCE WITH RECRUITING COUNSEL

Plaintiff has filed a motion for assistance recruiting counsel. Litigants in federal civil cases do not have a constitutional or statutory right to court-appointed counsel. Walker v. Price, 900 F.3d 933, 938 (7th Cir. 2018). Instead, 28 U.S.C. § 1915(e)(1) gives courts the authority to "request" counsel. Mallard v. United States District Court, 490 U.S. 296, 300 (1989). As a practical matter, there are not enough lawyers willing and qualified to accept a pro bono assignment in every pro se case. See Watts v. Kidman, 42 F.4th 755, 764 (7th Cir. 2022) (explaining that courts must be careful stewards of the limited resource of volunteer lawyers); Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014) ("Whether to recruit an attorney 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."). "'When confronted with a request under § 1915(e)(1) for pro bono counsel, the district court is to make the following inquiries: (1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?'" Eagan v. Dempsey, 987 F.3d 667, 682 (7th Cir. 2021) (quoting Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). These two questions "must guide" the Court's determination whether to attempt to recruit counsel. Id. These questions require an individualized assessment of the plaintiff, the claims, and the stage of litigation. See Pruitt, 503 F.3d at 655-56. The first question, whether litigants have made a reasonable attempt to secure private

counsel on their own, "is a mandatory, threshold inquiry that must be determined before moving to the second inquiry." Eagan, 987 F.3d at 682; see also Thomas v. Anderson, 912 F.3d 971, 978 (7th Cir. 2019) (because plaintiff did not show that he tried to obtain counsel on his own or that he was precluded from doing so, the judge's denial of these requests was not an abuse of discretion). Plaintiff states that he cannot attempt to contact attorneys to request representation because he is housed in a federal facility in Kentucky with limited information on local attorneys and he does not have anyone to assist him. The Court finds that under the circumstances, the plaintiff has made a reasonable effort to recruit counsel on his own before seeking the Court's assistance. But he should continue his efforts to find counsel to the best of his ability. "The second inquiry requires consideration of both the factual and legal complexity of the

plaintiff's claims and the competence of the plaintiff to litigate those claims himself." Eagan, 987 F.3d at 682 (citing Pruitt, 503 F.3d at 655). "The court's competency evaluation should account for 'the plaintiff's literacy, communication skills, educational level, and litigation experience,' and, to the extent that such evidence is before the court, information 'bearing on the plaintiff's intellectual capacity and psychological history.'" Watts, 42 F.4th at 760 (quoting Pruitt, 503 F.3d at 655). "Specifically, courts should consider '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.'" Eagan, 987 F.3d at 682 (quoting Pruitt, 503 F.3d at 655). "This assessment of the plaintiff's apparent competence extends beyond the trial stage of proceedings; it must include ‘the tasks that normally attend litigation: evidence gathering, preparing and responding to motions and other court filings, and trial." /d. (quoting Pruitt, 503 F.3d at 655). Plaintiff's motion indicates that he has no difficulty reading or writing in English, completed the 11" grade, has an IQ of 77, and has anxiety and depression at times. He alleges in this action that Defendant gave him the wrong medication which made him ill, and she ignored his requests for medical treatment. The claim is relatively straightforward, and the factual basis of the claim is within his personal knowledge. Plaintiff's filings to date have been comprehensible and appropriate to the case. The Court finds that he is competent to litigate on his own at this early stage of the case. His motion for assistance recruiting counsel, dkt. [33], is denied without prejudice. If the barriers noted in his motion make it difficult for him to comply with any case deadlines, he may move for an extension of time. The Court will remain alert to changes in circumstances that may warrant reconsideration of the motion, such as a settlement conference or trial. SO ORDERED. Date: 3/25/2024 A : tH Ww Distribution: Hon. Tanya Walton Pratt, Chief Judge United States District Court JERRY T. DAVIS Southern District of Indiana #17592-028 MCCREARY - USP MCCREARY U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 3000 PINE KNOT, KY 42635 R. Jeffrey Lowe KIGHTLINGER & GRAY, LLP (New Albany) jlowe@k-glaw.com