DRURY v. BURKHART

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

STEVEN L. DRURY, ) ) Plaintiff, ) ) v. ) No. 2:22-cv-00462-JPH-MJD ) BRAD BURKHART, et al., ) ) Defendants. )

ORDER DENYING WITHOUT PREJUDICE MOTION FOR ASSISTANCE WITH RECRUITING COUNSEL

Plaintiff, Steven Drury, has filed a motion for assistance recruiting counsel. Dkt. 35. 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 has attempted to contact multiple attorneys with requests for representation without success. The Court finds that he has made a reasonable effort to recruit counsel on his own before seeking the Court's assistance. He should continue his efforts to find counsel. "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.'" Id. (quoting Pruitt, 503 F.3d at 655). Mr. Drury states that he is paralyzed on the left side of his body, making it difficult for him to write his filings. He has a GED, but no legal training. He has received assistance from other inmates but is held in segregation and only is let out of his cell for an hour a day. The Court finds that Mr. Drury is capable

of litigating on his own at this time. His filings indicate that, while he does not have legal training, he understands his claims and the facts on which they are based. To the extent that he has difficulty writing filings, he has so far been able to submit necessary filings in this case. Further, since he filed his motion for counsel, he has filed a notice of change of address, indicating that his movement is likely not as limited as it was when he was in segregation. Dkt. 38. He should continue to seek help from others and may request extensions of time as

necessary. If his circumstances make submitting timely filings more difficult as the case progresses, he may renew his motion. Plaintiff's motion for assistance recruiting counsel, dkt. [35], is denied without prejudice. 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: 10/4/2023 . James Patrick Hanlon United States District Judge Distribution: Southern District of Indiana STEVEN L. DRURY P.O. Box 246 Lewisville, IN 47352 All electronically registered counsel