SAWYER v. NUTTER

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION

TRAVIS SCOTT SAWYER, ) ) Plaintiff, ) ) v. ) No. 4:22-cv-00140-TWP-KMB ) REBECCA BOWER, ) MARK GRUBE, ) DR. DOO, ) MISS PAULA, ) BEN DOOLEY, ) SHERIFF SCOTT MAPLES, ) ) Defendants. ) )

ORDER DENYING WITHOUT PREJUDICE MOTION FOR ASSISTANCE WITH RECRUITING COUNSEL

This matter is before the Court on Plaintiff Travis Scott Sawyer's second Motion for Assistance Recruiting Counsel. (Dkt. 43). For the reasons explained below, the Motion is denied but without prejudice. 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 plaintiffs 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 lacks legal training and that his incarceration makes it difficult for him to litigate this case. His motion does not indicate that he suffers from any physical or mental disabilities that would prevent him from litigating on his own. However, the basis of his claim in this action is that the defendants violated Plaintiff's Fourteenth Amendment rights when they failed to accommodate his confinement to a wheelchair. Nothing in the record or Plaintiff's motion indicates that he is incompetent to litigate on his own at this stage of the case. If the limitations presented by either his incarceration or his physical disability prevent him from being able to comply with case deadlines, he may move for extensions of time as necessary. For these reasons, Plaintiff's motion for assistance recruiting counsel, dkt. [43], is denied without prejudice. The clerk is directed to send Plaintiff a motion for assistance recruiting counsel form, which he must use if he chooses to renew his motion. 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 ( Nan, x \ Jato» rect Hon. Tanya Walton Pratt, Chief Judge United States District Court Southern District of Indiana

Distribution:

TRAVIS SCOTT SAWYER DOC Number 273890 WESTVILLE CORRECTIONAL FACILITY Inmate Mail/Parcels 5501 South 1100 West WESTVILLE, IN 46391

R. Jeffrey Lowe KIGHTLINGER & GRAY, LLP (New Albany) jlowe@k-glaw.com

Brian M. Pierce Brian M. Pierce, Attorney at Law brian@brianpiercelaw.com