Ellison v. Hardy et al

Filing 5

WRITTEN Opinion entered by the Honorable Samuel Der-Yeghiayan on 9/11/2012:For the reasons stated below, Petitioner's motion for leave to proceed in forma pauperis 3 is denied. Petitioner is given until October 2, 2012, to pay the filing fee. Petitioner is warned that if he fails to pay the filing fee by October 2, 2012, this case will be dismissed. Petitioner's motion for appointment of counsel 4 is denied. [ For further details see written opinion.] Mailed notice (tg, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Samuel Der-Yeghiayan

CASE NUMBER

12 C 6441

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

9/11/2012

Bennie K. Ellison vs. Marcus Hardy

DOCKET ENTRY TEXT

For the reasons stated below, Petitioner’s motion for leave to proceed in forma pauperis [3] is denied.
Petitioner is given until October 2, 2012, to pay the filing fee. Petitioner is warned that if he fails to pay the
filing fee by October 2, 2012, this case will be dismissed. Petitioner’s motion for appointment of counsel [4]
is denied.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
This matter is before the court on Bernie K. Ellison’s (Ellison) motion for leave to proceed in forma
pauperis and motion for appointment of counsel. Ellison indicates on his in forma pauperis application form
that he receives $100 per month from his sister. In addition, a review of Ellison’s prison trust account shows
that he currently has $125.26 in the account. Ellison has thus failed to show that he is sufficiently indigent to
be unable to pay the filing fee of $5 in this habeas case, and his motion for leave to proceed in forma
pauperis is therefore denied. Ellison is given until September 27, 2012, to pay the filing fee. Ellison is
warned that if he fails to pay the filing fee by September 27, 2012, this case will be dismissed.
Ellison also seeks an appointment of counsel. An indigent civil litigant does not have a right to
appointed counsel. Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997). However, a court, in its discretion,
can appoint counsel for indigents in a civil action pursuant to 28 U.S.C. § 1915(e)(1). In determining
whether to appoint counsel for a civil litigant, a court must consider the following factors: “(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, 661 (7th Cir. 2007)(stating that there is no presumption in favor of
12C6441 Bennie K. Ellison vs. Marcus Hardy

Page 1 of 2

STATEMENT
granting or denying a motion for appointment of counsel and that each motion is to be considered
individually). In considering the competency factor, the court must determine “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 or jury himself.” Id. at 655 (stating that “[t]he question is not whether a lawyer would present the
case more effectively than the pro se plaintiff; ‘if that were the test, district judges would be required to
request counsel for every indigent litigant’”)(quoting Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir.
2006)). In assessing competency, the court must consider “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). In ruling on a motion for appointment of counsel, the court should take into consideration “the
plaintiff’s literacy, communication skills, educational level, and litigation experience” and evaluate
“evidence in the record bearing on the plaintiff’s intellectual capacity and psychological history,” including
“any information submitted in support of the request for counsel, as well as the pleadings, communications
from, and any contact with the plaintiff.” Id. (stating that “in some cases-perhaps many cases-the record may
be sparse,” and that “[t]he inquiry into the plaintiff’s capacity to handle his own case is a practical one, made
in light of whatever relevant evidence is available on the question”).
In the instant action, Ellison has not shown that this case is overly complex or difficult, factually or
legally. The court has considered the entire record in this case at this juncture, as it reflects on Ellison’s
ability to coherently present his case as a layperson and his ability to perform the tasks that normally attend
litigation. The court concludes that, based upon the record before the court, Ellison is competent to present
his case at this juncture without the assistance of appointed counsel. Therefore, an appointment of counsel is
not warranted at this juncture, and the motion for appointment of counsel is denied.

12C6441 Bennie K. Ellison vs. Marcus Hardy

Page 2 of 2