Wofford v. Celani et al

Filing 45

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 3/22/2012:Mailed notice(jms, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STANLEY WOFFORD,
Plaintiff,
v.
OFFICER CELANI
Defendant.

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No. 11 C 3543
Judge Bucklo
Magistrate Judge Cole

MEMORANDUM OPINION AND ORDER
The plaintiff, currently in custody, has brought this pro se civil rights action pursuant to 42
U.S.C. § 1983. The plaintiff alleges several Chicago Police Department officers conducted an illegal
stop and search and falsely charged him with possession of marijuana. The plaintiff’s previous
motion to proceed in forma pauperis without full payment of fees was granted. (Dkt. 4). The
plaintiff now moves for appointment of counsel.
There is no constitutional or statutory right to counsel in federal civil litigation. Pruitt v.
Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc); Romanelli v. Suliene, 615 F.3d 847, 851 (2010);
Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir.2006). Nevertheless, an indigent litigant may
request appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Pruitt, 503 F.3d at 654. The
language of § 1915(e)(1) is “entirely permissive” and does not suggest a “congressional preference
for recruitment of counsel in any circumstance or category of case.” Id. Rather, the decision is at
the district court’s discretion. Id.; Johnson, 433 F.3d at 1006; Farmer v. Hass, 990 F.2d 319, 323
(7th Cir. 1993). “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.” Pruitt, 503 F.3d at
654. The first inquiry is a “threshold question the district court must ask before ruling on a §
1915(e)(1) motion.” Id. at 655.
With respect to the first inquiry, the plaintiff has failed to show either that he has made
reasonable efforts to retain private counsel or that he has been effectively precluded from making
such efforts. The plaintiff does not allege, nor is there anything in the record to indicate that he has
in some fashion been precluded from obtaining counsel. He has only stated that he cannot afford
one. (Pl.’s Mot., ¶ 1). The plaintiff’s motion indicates that he has made “some effort” to obtain
counsel, but “his efforts have been unsuccessful.” (Pl.’s Mot., ¶ 2). In support of this allegation,
he lists the name of one attorney and the name of one law firm as well as their respective addresses
and phone numbers. (Pl.’s Mot., ¶ 2).
In response, the defendant, relying on a small survey of recent cases decided in the Northern
and Southern District of Illinois, suggests that an indigent plaintiff requesting appointment of
counsel must provide documentation of any attempts to obtain counsel with letters from the
attorney(s) who declined to provide representation or some other form of supporting evidence.
(Def.’s Resp., p. 2). Additionally, defendant suggests that two or fewer attempts is not reasonable.
(Def.’s Resp., p. 2). The defendant however, does acknowledge that there is no bright-line rule as
to what constitutes a reasonable attempt. Nor could there be since in all contexts reasonableness is
a flexible concept that depends on circumstances. Cf. American Nat. Bank and Trust Co. v. Hoyne
Industries, Inc., 966 F.2d 1456, *7 (7th Cir. 1982); Shields v. Burge, 874 F.2d 1201, 1204 (7th Cir.
1989).
The cases cited by the defendant underscore the inherent flexibility of the reasonableness
analysis and teach that such an inquiry requires a case-by-case basis assessment. That said, the

number of attempts by an indignant litigant and any supporting documentation certainly while
relevant to the inquiry, is not conclusive. However, a mere recitation of I have made “some efforts”
to obtain counsel but have been unsuccessful is not particularly informative or helpful in
determining whether the plaintiff has met the first inquiry of Pruitt. The plaintiff has failed to show
that he has made a reasonable attempt to obtain counsel.
While failing to meet the initial threshold inquiry of Pruitt is fatal to a request for
appointment of counsel, I believe an analysis under the second inquiry would be beneficial. To
begin, the case is not complex. Neither the legal issues raised in the complaint nor the evidence that
might support the plaintiff's claims is so intricate that a trained attorney is necessary. Additionally
there is only one named defendant and the plaintiff is the eyewitness to the alleged misconduct.
With respect to whether the plaintiff appears competent to litigate his own claims, Pruitt
suggests factors to consider are “the plaintiff’s literacy, communication skills, educational level, and
litigation experience.” Pruitt, F.3d at 655. Additionally, “any evidence in the record bearing on the
plaintiff’s intellectual capacity and psychological history” would be relevant. Id. at 655.
The plaintiff has alleged no physical or mental disability that might preclude him from
adequately investigating the facts giving rise to his complaint. He does lists three “difficulties and
challenges” in litigating his own case: 1) That he is currently denied mailing materials and access
to law books while incarcerated; 2) that he is unable to respond to the defendant’s discovery requests
because the documents requested are in the possession of his elderly mother and she cannot afford
to mail them; and 3) he is incapable of conducting depositions and gather other discovery. (Pl.’s
Mot., ¶ 3).
Being incarcerated undoubtedly hinders the plaintiff’s ability to litigate his own case. His
limitations, however, are not unique. Anyone in custody faces similar challenges. If being

incarcerated were sufficient to satisfy Pruitt’s second inquiry then there would be a blanket rule, that
all pro se plaintiff’s, if in custody, be appointed counsel. That is not the case. It is but one factor
to consider. The inquiry remains, given the plaintiff’s litigation capabilities, which necessarily
includes the limitation inherent to incarceration, is he competent to litigate his claims.
The plaintiff’s first allegation, that he is being denied mailing materials and law books is not
persuasive. The plaintiff previously filed a motion to compel Effingham County Officials to provide
postage for all legal mail, which I denied. (Dkt. 25). I issued an order to the Effingham Sheriff’s
Office requesting the plaintiff be allowed postage in accordance with Ill. Admin. Code Title, 20 §
525.130(a). (Dkt. 27). Furthermore, the very fact that I am discussing an instant motion, which the
plaintiff had no difficulties filing with this court, undercuts his contention that he is being denied
access to the courts. Similarly, the plaintiff’s allegation that he is being precluded from conducting
legal research is equally problematic given his case citations in his motion.
Plaintiff’s second allegation, that he cannot comply with the defendant’s request for
discovery because his mother cannot afford to mail requested documents is completely irrelevant
to the question of the plaintiff’s ability to competently litigate his case. Figuring out how to get
documents from his mother’s house to defendant’s counsel does not require the assistance of an
attorney.
Finally, the plaintiff’s third allegation that his incarceration precludes him from performing
certain forms of discovery including the taking of depositions is certainly valid and well taken, but
as discussed earlier, not by itself, sufficient to require appointment of counsel; all prisoners face
similar constraints. The plaintiff still has other avenues for discovery. In fact, the plaintiff has
already served the defendant with request to produce documents under Rule 34, which is well
drafted and appears on its face specifically tailored to discovery of evidence relevant to the

plaintiff’s claims. (Def’s Resp., Ex. B).
More importantly, the plaintiff is no stranger to litigation. The plaintiff indicates in his
complaint another pending lawsuit in the Northern District of Illinois filed in February 2011. In
2010 he filed a lawsuit in the Northern District of Illinois that was subsequently transferred to the
Central District and dismissed. In 2006 he filed a lawsuit in the Southern District of Illinois that
went to trial in 2009 resulting in a favorable disposition to the plaintiff. (Compl., ¶ 3). The
defendant’ response lists eight cases the plaintiff filed pro se in federal court and three cases in the
Illinois Court of Claims over a thirteen-year period. (Def.’s Resp., p. 8). Even more convincing in
the question of the plaintiff’s ability to represent himself is the sampling of documents drafted by
the plaintiff and attached as an exhibit to the defendant’s response. (Def.’s Resp., Ex. A).
The samples, like the motion for appointment of counsel, are meticulously drafted and
legibly hand-written. They cite to relevant case law and statutory authority where appropriate, and
the citations themselves attempt to follow blue-book form. His arguments are coherent and well
reasoned. Indeed, they are superior to many of the briefs written by members of the bar. Taking
the instant motion for appointment of counsel as an example, the motion is properly captioned. It
correctly sets out the applicable legal standard, correctly citing to Pruitt and proceeds to address
each inquiry of Pruitt in turn. It contains the necessary unsworn declaration under penalty of
perjury, citing to the correct section of the United States Code, 28 USC § 1746 and attached is an
adequate proof of service. Additionally, during a recent telephone appearance on March 8, 2012,
I found the plaintiff to be articulate and respectful.
The plaintiff is clearly literate, able to communicate effectively, and an experienced litigator.
In fact, in a recent deposition, the plaintiff stated that he has taken some college courses and has had
some paralegal training. (Def.’s Resp., p. 9). I have no doubt that the plaintiff is competent at

preparing and responding to motions and other court filings and in light of all the factors as
discussed I find him competent to litigate his own claims. It should additionally be noted that pro
se litigants are accorded wide latitude in the handling of their lawsuits in this district. The plaintiff’s
motion for appointment of counsel is denied.

ENTERED:_____________________________________
UNITED STATES MAGISTRATE JUDGE
DATE: 3/22/12