United States District Court, S.D. Indiana, Indianapolis Division
DAVID E. HOWARD, Plaintiff,
BRIAN LAMARR Attorney, LISA BRAGG Prosecutor, Defendants.
ENTRY GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT, AND DIRECTING FURTHER
William T. Lawrence, United States District Judge
David Howard's motion to proceed in forma
pauperis [dkt 2] is granted. No assessment of an initial
partial filing fee is feasible at this time.
motion for assistance with recruiting counsel [dkt 3] is
denied. Pursuant to 28 U.S.C. § 1915(e)(1), courts are
empowered only to “request” counsel. Mallard
v. United States District Court, 490 U.S. 296, 300
confronted with a request . . . 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?” Pruitt v.
Mote, 503 F.3d 647, 654-655 (7th Cir. 2007). The court
must deny “out of hand” a request for counsel
made without a showing of such effort. Farmer v.
Haas, 990 F.2d 319 (7th Cir.), cert. denied,
114 S.Ct. 438 (1993). The plaintiff asserts that he has been
unsuccessful in recruiting representation on his own.
Although the Court concludes, based on the above filing, that
the plaintiff has made a reasonable effort to secure
representation, he should continue those efforts.
Court proceeds to the second inquiry required in these
circumstances. Here, the Court must analyze Howard's
abilities as related to “the tasks that normally attend
litigation: evidence gathering, preparing and responding to
motions and other court filings, and trial.”
Pruitt, 503 F.3d at 655. Accordingly, the question
is not whether an attorney would help the plaintiff's
case, but whether, given the difficulty of the case, the
plaintiff seems competent to litigate it himself.
Id. at 653-655.
Court will not make an outright request that counsel
represent Howard at this time. The issues raised in the
complaint are not complex and, as discussed below, do not
appear to be viable. Howard states that he is educated - he
has an associates degree in applied science. In addition,
based on Howard's comprehensible filings, his use of the
court's processes, his familiarity with the factual
circumstances surrounding his legal claims, he is competent
to litigate on his own.
brings this action, presumably pursuant to 42 U.S.C. §
1983, alleging that attorney Brian Lamarr and Prosecutor Lisa
Bragg colluded against him to obtain a conviction against him
of certain crimes. Because Howard is a “prisoner”
as defined by 28 U.S.C. § 1915(h), the complaint is
subject to the screening requirement of 28 U.S.C. §
1915A(b). Pursuant to this statute, “[a] complaint is
subject to dismissal for failure to state a claim if the
allegations, taken as true, show that plaintiff is not
entitled to relief.” Jones v. Bock, 127 S.Ct.
910, 921 (2007). To survive a motion to dismiss, the
complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (quotations omitted).
Pro se complaints such as that filed by Howard, are construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers. Erickson, 551 U.S. at
94; Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th
on this screening, the complaint must be dismissed. First, a
prosecutor has absolute immunity from a civil suit for
damages under § 1983 “in initiating a prosecution
and in presenting the State's case.” Imbler v.
Pachtman, 424 U.S. 409, 427 (1976). In addition, any
claim that, if successful, would call into question the
plaintiff's criminal conviction is barred by Heck v.
Humphrey, 512 U.S. 477 (1994). That decision prevents
prisoners from bringing a § 1983 action requesting
damages for an unconstitutional conviction or imprisonment
without first showing that the challenged conviction or
sentence has been reversed or expunged. Id. at
486-87. The only way to challenge the validity of a state
criminal conviction in federal court was to file a petition
for a writ of habeas corpus.
foregoing reasons, Howard's complaint is dismissed.
Howard shall have through April 14, 2017, to show cause why