United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is a letter filed on February 27, 2019, by
Plaintiff Gloria Jones, who is now proceeding pro se
in this discrimination case under Title VII and the Family
Medical Leave Act (“FMLA”) against her former
employer, Defendant Parkview Hospital, Inc.
(“Parkview”). (DE 63). In the letter, Jones asks
the Court to appoint counsel to represent her in this case
and to vacate Parkview's upcoming deposition of Jones set
for March 7, 2019. Jones also raises various complaints about
her former counsel's representation of her in this case,
and the attorney fee lien filed by her such counsel. For the
following reasons, Jones's various requests will be
REQUEST FOR APPOINTMENT OF COUNSEL
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); Zarnes v.
Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Rather,
district courts are empowered to appoint an attorney to
represent a plaintiff without charge when she is
“unable to afford counsel, ” 28 U.S.C. §
1915(e)(1), or in Title VII cases “in such
circumstances as the court may deem just, ” 42 U.S.C.
Seventh Circuit Court of Appeals has instructed that several
factors should be weighed by the district court when
determining whether appointment 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 herself. McCaa v.
Hamilton, 893 F.3d 1027, 1031 (7th Cir. 2018) (citation
omitted); Pruitt, 503 F.3d at 654-58; Sherrill
v. Potter, 329 Fed.Appx. 672, 675 (7th Cir. 2009)
(applying the Pruitt factors in a Title VII case);
see also Darden v. Ill. Bell Tel. Co., 797 F.2d 497,
500-501 (7th Cir. 1986) (instructing the court to consider
“the merits of the plaintiff's claim, the
plaintiff's diligence in attempting to obtain a lawyer,
and the plaintiff's financial ability to retain
counsel” when considering a motion to appoint counsel
under Title VII (citation omitted)).
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
[herself].” Olson v. Morgan, 750 F.3d 708, 712
(7th Cir. 2014) (citation and internal quotation marks
omitted). In conducting this inquiry, the district court must
ascertain “whether the plaintiff appears competent to
litigate [her] 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). Normally, determining a
plaintiff's competence will be assessed by considering
“the plaintiff's literacy, communication skills,
educational level, and litigation experience.”
Id. 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.
considering a pro se plaintiff's request for
counsel, this Court as a threshold matter requires that a
pro se plaintiff first contact at least three
attorneys concerning the 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). Here, Jones has
satisfied this threshold requirement, as not only has she had
two different law firms represent her (only to later
withdraw), but she also states that about 12 attorneys have
told her that they would take her case but for the attorney
fee lien. (See DE 43; DE 54; DE 63 at 2).
request for counsel, however, will be denied on other
grounds. This is because it is evident that Jones seems
capable of litigating her claims herself, at least at this
stage of the proceedings. This suit is a relatively
straightforward employment discrimination action: Jones
claims that her former employer, Parkview, discriminated and
retaliated against her based on her race, sex, and age, and
because she used medical leave under the FMLA. (DE 22);
see, e.g., Jagla v. LaSalle Bank, No. 05 C
6460, 2006 WL 1005728, at *5 (N.D. Ill. Apr. 12, 2006)
(denying the plaintiff's request for counsel in a
straightforward national origin discrimination case,
observing that the issue did not involve any
“‘nonintuitive procedural requirements applied in
a setting of complex legal doctrine'” (quoting
Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 429 (7th
Jones has been proceeding pro se, she has prepared
and filed two letters seeking various relief from the Court.
(DE 59; DE 63). Jones has also appeared at several
conferences before the Court, at which she was able to
adequately articulate her position. (DE 18; DE 34; DE 43; DE
58; DE 61). Furthermore, Jones has a 24-year employment
history with Parkview as a pharmacy technician. (See,
e.g., DE 63 at 1, 5, 10, 27). Thus, it is obvious that
Jones is literate and has adequate communication skills, at
least for purposes of representing herself. And while she
does have some health concerns, Jones does not suggest that
any of these conditions interfere with her ability to
prosecute this case pro se. (DE 63 at 1-3); cf.
McCaa, 2018 WL 3134606, at *4 (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 the plaintiff's low
IQ, functional illiteracy, and poor education).
the facts of this case are within Jones's personal
knowledge to at least some degree, so the task of discovery
does not appear particularly complex. Jones is not
incarcerated, and thus, she has the freedom and ability to
perform her own legal research.
these reasons, Jones appears to be competent and fully
capable of representing herself in this suit, at least during
the discovery phase. See Zarnes, 64 F.3d at 289.
Consequently, her motion will be DENIED without prejudice.
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)).
REQUEST TO VACATE DEPOSITION AND COMPLAINTS ...