Brown v. Commissioner of Social Security

Filing 11

WRITTEN Opinion entered by the Honorable Samuel Der-Yeghiayan on 2/21/2013: For the reasons stated below, Plaintiffs amended motion for leave to proceed in forma pauperis 8 is granted and Plaintiffs request for attorney assistance is denied. Defe ndant having filed an answer, and pursuant to Local Rule 16.4, Plaintiff is given until 04/22/13 to file a brief in support of reversing or remanding the decision subject to review and Defendant is given 45 days thereafter to file his motion to affirm the decision and his brief in support. Plaintiff is given 14 days thereafter to file a reply brief. Status hearing set for 08/20/13 at 9:00 a.m. Mailed notice [For further details see opinion.] (mgh,)

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 10145

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

2/21/2013

Catherine Brown vs. Commissioner of Social Security

DOCKET ENTRY TEXT

For the reasons stated below, Plaintiff’s amended motion for leave to proceed in forma pauperis [8] is granted
and Plaintiff’s request for attorney assistance is denied. Defendant having filed an answer, and pursuant to
Local Rule 16.4, Plaintiff is given until 04/22/13 to file a brief in support of reversing or remanding the
decision subject to review and Defendant is given 45 days thereafter to file his motion to affirm the decision
and his brief in support. Plaintiff is given 14 days thereafter to file a reply brief. Status hearing set for
08/20/13 at 9:00 a.m.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
This matter is before the court on Plaintiff Catherine Brown’s (Brown) motion for leave to proceed in
forma pauperis and motion for appointment of counsel. Brown indicates on her in forma pauperis
application form that her sole income is $698 per month in social security payments and that she has two
dependent children. Therefore, Brown’s motion for leave to proceed in forma pauperis is granted.
Brown also seeks an appointment of counsel. Pursuant to the Seventh Circuit’s ruling in Ray v.
Wexford Health Sources, Inc., 2013 WL 452769 (7th Cir. 2013), the term “appointment” is imprecise as there
is no statutory authority to “appoint” counsel. Therefore, the motion will be construed as a motion for
attorney assistance. See also, e.g., Mallard v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. 296
(1989); Pruitt v. Mote, 503 F.3d 647, 653-54 (7th Cir. 2007). An indigent civil litigant does not have a right
to the assistance of counsel. Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997). However, a court, in its
discretion, can request that counsel voluntarily assist indigents in a civil action pursuant to 28 U.S.C. §
1915(e)(1). In determining whether to request the voluntary assistance of 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
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STATEMENT
plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654, 661 (7th Cir. 2007). 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 attorney assistance, 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, Brown 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 Brown’s
ability to coherently present her case as a layperson and her ability to perform the tasks that normally attend
litigation. The court concludes that, based upon the record before the court, Brown is competent to present
her case at this juncture without the assistance of counsel. Therefore, the motion for attorney assistance is
denied.

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