United States District Court, N.D. Indiana, Fort Wayne Division
CLYDE E. WILLIAMS, JR., Plaintiff,
MARK A. SPITZER, sued in his official and individual capacity, et al., Defendants.
OPINION AND ORDER
Collins, United States Magistrate Judge
December 29, 2017, pro se Plaintiff Clyde E.
Williams, Jr., filed a letter (DE 9) in this 42 U.S.C. §
1983 case, which the Court will construe as a motion, asking
that the Court appoint an attorney to represent him. For the
following reasons, Williams's motion will be DENIED.
is no right to court-appointed counsel in federal civil
litigation.” Olson v. Morgan, 750 F.3d 708,
711 (7th Cir. 2014) (citing Pruitt v. Mote, 503 F.3d
647, 649 (7th Cir. 2007)). Under 28 U.S.C. § 1915(e)(1),
a court may request that an attorney represent an indigent
litigant; the decision whether to recruit pro bono counsel is
left to the discretion of the district court. Olson,
750 F.3d at 711; Pruitt, 503 F.3d at 658.
deciding whether to request counsel, district courts must ask
two questions: ‘(1) [H]as 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?'” Olson, 750 F.3d at 711
(alteration in original) (quoting Pruitt, 503 F.3d
at 654); see also McCaa v. Hamilton, 893 F.3d 1027,
1031 (7th Cir. 2018). The second portion of this inquiry,
stated another way, 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, 750
F.3d at 712 (quoting Pruitt, 503 F.3d at 655). In
conducting this inquiry, the district court must ascertain
“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.” Pruitt, 503 F.3d at
655 (emphasis omitted).
determining a plaintiff's competence will be assessed by
considering “the plaintiff's literacy,
communication skills, educational level, and litigation
experience.” Id. And if the record reveals the
plaintiff's intellectual capacity and psychological
history, these too would be relevant. Id. Overall,
the decision to recruit counsel is a “practical one,
made in light of whatever relevant evidence is available on
the question.” Id.; see also McCaa,
893 F.3d at 1032-33.
filed his motion while incarcerated at the Grant County Jail,
but he has since been released. In the motion, Williams
states that he wrote several lawyers and even posted his need
for a lawyer online, all to no avail. Williams did not
provide the lawyers' names in his motion, citing his lack
of access to his home computer during his incarceration. (DE
Court has previously required that a pro se
plaintiff contact at least three attorneys concerning his
case. See, e.g., Pollard v. Meadows, No.
1:15-cv-00330-RLM-SLC, 2016 WL 128531, at *1 (N.D. Ind. Jan.
11, 2016). It is unclear from Williams's motion whether
he adequately satisfied this threshold requirement concerning
a request for recruitment of counsel. See Jackson
v. Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir.
1992) (“If . . . the indigent has made no reasonable
attempts to secure counsel (unless circumstances prevented
him from doing so), the court should deny any § 1915(d)
motions outright.”); see also Romanelli v.
Suliene, 615 F.3d 847, 851-52 (7th Cir. 2010). Even if
Williams did, in fact, contact at least three attorneys, then
these attorneys have chosen to pass up the opportunity to
represent him, which speaks rather directly to the merits of
Williams's case and raises a fair inference that these
attorneys did not view his case as meritorious. See
Jackson, 953 F.2d at 1073 (considering plaintiff's
unsuccessful attempts to retain counsel when denying his
motion to appoint counsel).
the second portion of the inquiry, Williams seems capable of
litigating his claims himself, at least at this stage of the
proceedings. He has already articulated his claims in this
suit in a detailed, 23-page typewritten complaint (DE 1);
sought various forms of relief through filing motions (DE 2;
DE 4; DE 5; DE 9; DE 49; DE 67; DE 68); filed a response to
Defendants' motion to stay (DE 31); participated in the
parties' planning meeting (DE 81); participated in a Rule
16 preliminary pretrial conference (DE 82); and served
Defendants with a written discovery request (DE 71). In this
suit, Williams claims that Defendants (many of whom are
various officials or contractors of Grant County, Indiana)
conspired to violate and did, in fact, violate his First
Amendment rights by requiring him to participate in a
faith-based substance abuse treatment program. Williams also
alleges that Defendants Craig Persinger and Evan Hammond
committed legal malpractice and intentionally inflicted
emotional distress upon him.
the complexity of Williams's claims could weigh in favor
of appointing counsel if the case proceeds to summary
judgment or trial, the pleading and discovery phases of this
case are not particularly complex. And it is evident from
Williams's filings and participation in the preliminary
pretrial conference that he has reasonably good communication
skills, at least at a sufficient level to proceed pro se.
Cf. McCaa, 893 F.3d at 1033 (concluding that the
district court erred by not appropriately considering that
the incarcerated plaintiff's mental capacity required him
to obtain assistance from another inmate); Dewitt v.
Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014)
(reversing a district court's denial of request for
counsel pertaining to “a blind and indigent prisoner
with a tenth-grade education and no legal experience”
in a case involving complicated medical matters);
Henderson v. Ghosh, 755 F.3d 559, 567 (7th Cir.
2014) (reversing a district court's denial of request for
counsel where the record reflected plaintiff's low IQ,
functional illiteracy, and poor education). Further, Williams
is no longer incarcerated and thus has the freedom to perform
his own research. In fact, it was evident at the preliminary
pretrial conference that Williams had already performed some
the foregoing, Williams appears competent to adequately
handle the litigation of this § 1983 case at this early
stage of the proceedings. Consequently, his request for the
appointment of counsel will be denied. If Williams's case
survives the pending motions to dismiss (DE 46; DE 50; DE 59
to DE 63) and progresses through discovery, the Court will
reconsider recruiting counsel for him, upon Williams's
further motion, at the summary judgment or trial phase.
See Mungiovi v. Chi. Hous. Auth., No. 94 C 6663,
1994 WL 735413, at *2 (N.D. Ill.Dec. 19, 1994) (“[The]
court's general practice is to consider appointment of
counsel if and when it appears that the action has sufficient
merit to require complex discovery or an evidentiary
hearing.” (citation omitted)).
forgoing reasons, Williams's letter (DE 9), requesting
that the Court appoint him counsel, is DENIED. Williams is,