Stacy v. Wabash National

• Court: District Court, N.D. Indiana
• Decided: September 13, 2023
• Docket: 4:23-cv-00059
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION

KYLE LEE STACY, ) ) Plaintiff, ) ) v. ) Case No. 4:23-cv-59 ) WABASH NATIONAL, ) ) Defendants. )

OPINION AND ORDER

This matter is before the court on the Motion for Assistance to Attorney [DE 19] filed by the pro se plaintiff, Kyle Lee Stacy, on September 7, 2023. For the following reasons, the motion is DENIED without prejudice. Background The plaintiff, Kyle Lee Stacy, filed a pro se complaint on April 5, 2023, in Indiana state court against the defendant, Wabash National (Wabash), his former employer, alleging discrimination, hostile work environment, and wrongful termination. [DE 5]. On July 13, 2023, Wabash removed this case to federal court. [DE 1]. On September 7, 2023, the plaintiff filed the instant motion requesting that the court appoint him counsel to assist him with his case. Discussion Civil litigants do not have a right, either constitutional or statutory, to court-appointed counsel. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997); Jackson v. Cnty. of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). Rather, district courts are empowered to recruit an attorney to represent a plaintiff without charge when he is “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The Seventh Circuit has instructed that several factors should be weighed by the court when determining whether recruitment of counsel is warranted: (1) whether the plaintiff has made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and (2) given the difficulty of the case, whether the plaintiff appears competent to litigate it himself. Pruitt, 503 F.3d at 654. In other words, the second portion of this inquiry is “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 and jury himself.” Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014) (quoting Pruitt, 503 F.3d at 655). Factors to be considered include “the plaintiff's literacy, communication skills, educational level, and litigation experience.” Pruitt, 503 F.3d at 655. In conducting this inquiry, the court must determine “whether the plaintiff appears competent to litigate his own claims, given their degree of difficulty, and this includes the tasks that normally attend litigation: evidence gathering, preparing and responding to motions and other court filings, and trial.” Id. (emphasis omitted). Here, the plaintiff has not satisfied the threshold requirements relating to his request for counsel. First, he has not submitted an affidavit of financial need under penalty of perjury.1

See Hairston v. Blackburn, No. 09-cv-598-MJR, 2010 WL 145793, at *10 (S.D. Ill. 2010) (“[A] proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 is a pre-requisite to appointment of counsel under § 1915(e)(1).” (citing Pruitt, 503 F.3d at 649)). As a result, the court need not reach the remaining factors of the analysis at this time. Also, when considering a pro se plaintiff's request for counsel, the court typically requires that a pro se plaintiff first contact at least three attorneys concerning the case. See Jackson, 953 F.2d at 1073 (“If ... the indigent has made no reasonable attempts to secure counsel (unless

1 See “Motion to Proceed in Forma Pauperis” form on the court’s website at https://www.innd.uscourts.gov/sites/innd/files/AO239.pdf. circumstances prevented him from doing so), the court should deny any § 1915(d) motions outright.”). The plaintiff has not shown that he has contacted three or more attorneys concerning his case, or otherwise made “reasonable attempts” to secure counsel. Therefore, the plaintiff's motion asking that the court appoint counsel on his behalf is DENIED without prejudice.

ENTERED this 13th day of September 2023. /s/ Andrew P. Rodovich United States Magistrate Judge