HALL v. GASKINS

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MITCHELL P. HALL, ) ) Plaintiff, ) ) v. ) No. 1:23-cv-01919-JPH-KMB ) RICHARD GASKINS, ) ) Defendant. )

ORDER DENYING WITHOUT PREJUDICE MOTIONS FOR ASSISTANCE WITH RECRUITING COUNSEL

Plaintiff has filed motions for assistance recruiting counsel. Dkt. 25; dkt. 26. 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). Plaintiff's motions indicate that he received his GED and has completed some college courses. He has a cyst on his brain that interferes with memory, cognitive, and motor skills, and prison officials are denying him access to the

law library. Defendants have raised the affirmative defense that Plaintiff did not exhaust available administrative remedies before bringing this case. The Court entered a scheduling order staying all merits discovery until the exhaustion defense has been resolved. If Defendants move for summary judgment on the defense, Plaintiff can respond in opposition by submitting a sworn affidavit attesting to his efforts to exhaust administrative remedies or explaining why they were unavailable to him.

The Court finds that at this early stage of litigation, Plaintiff is competent to litigate on his own. Plaintiff's motions for assistance recruiting counsel, dkt. [25] and dkt. [26], are denied without prejudice. If the limitations discussed in his motions interfere with his ability to meet court deadlines or adequately respond to any motion for summary judgment, he may renew his motion and provide details of how the limitations he is experiencing directly impact his ability to litigate. He may also move for extensions of time if necessary. 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: 5/6/2024 Sjamnu nick \bawlove James Patrick Hanlon United States District Judge Southern District of Indiana

Distribution: MITCHELL P. HALL 881479 PLAINFIELD - CF PLAINFIELD CORRECTIONAL FACILITY Inmate Mail/Parcels 727 MOON ROAD PLAINFIELD, IN 46168 Breanne Chambers Office of Indiana Attorney General breanne.chambers@atg.in.gov Katherine A Meltzer Office of Indiana Attorney General katherine.meltzer@atg.in.gov