Moore-Fotso v. Board of Education, City of Chicago

Filing 7

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 1/3/2013: For the reasons stated below, the Court denies Plaintiff's application for leave to proceed in forma pauperis 5 and gives Plaintiff 30 days from the date of this order to pay the $350 filing fee. If Plaintiff does not comply withthis order within that time frame, her case will be dismissed without prejudice. Plaintiff's motion for appointment of counsel 6 is denied without prejudice. Signed by the Honorable Robert M. Dow, Jr on 1/3/2013: Mailed notice(tlm)

Order Form (01/2005)

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

Robert M. Dow, Jr.

CASE NUMBER

12 C 10419

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

1/3/2013

Dorothy A. Moore-Fotso v. Board of Education City of Chicago

DOCKET ENTRY TEXT

For the reasons stated below, the Court denies Plaintiff’s application for leave to proceed in forma pauperis [5]
and gives Plaintiff 30 days from the date of this order to pay the $350 filing fee. If Plaintiff does not comply with
this order within that time frame, her case will be dismissed without prejudice. Plaintiff’s motion for
appointment of counsel [6] is denied without prejudice.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Before the Court is Plaintiff’s application for leave to proceed in forma pauperis [5] and her motion for
appointment of counsel [6]. The federal in forma pauperis statute is designed to ensure that indigent litigants
have meaningful access to the federal courts. Neitzke v. Williams, 490 U.S. 319, 324 (1989). The statute allows
a litigant to pursue a case in federal court without fees and costs provided that the litigant submits an affidavit
which asserts an inability “to pay such fees or give security therefor,” 28 U.S.C. § 1915(a)(1), so long as the
action is neither frivolous nor malicious, states a claim upon which relief may be granted, and does not seek
monetary relief from a defendant who is immune from such relief. § 1915(e)(2)(B).
The Court relies on the financial affidavit filed along with the in forma pauperis application to assess a party’s
claim to indigency. In order to file and proceed on a lawsuit in forma pauperis – that is, without paying the filing
fee – “a plaintiff’s income must be at or near the poverty level.” Bulls v. Marsh, No. 89 C 3518, 1989 WL 51170,
at *1 (N.D. Ill. May 5, 1989); see also Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980). To measure poverty
level, many judges in this district use the poverty guidelines promulgated by the United States Department of
Health and Human Services (available at http://aspe.hhs.gov/poverty/12poverty.shtml). The HHS poverty
guidelines for 2012 for the 48 contiguous states and the District of Columbia set the poverty level for a family
of one at an annual income level of $11,170.
Plaintiff alleges that she was discriminated against on the basis of a disability. In Plaintiff’s financial affidavit,
she avers that she currently is employed, working approximately 3 days/month as a substitute teacher for
Defendant Board of Education. In the section asking for information about additional income, Plaintiff states
that she receives disability in the amount of $49,668 per year. She also states that she has $5,000.00 in cash or
in a checking or savings account and that she owns her home (valued at $110,000) and a 2009 Jeep Commander
(valued at $25,698).

Page 1 of 2

STATEMENT
Based on the information provided by Plaintiff, the Court is able to determine that Plaintiff’s income does not
fall below the poverty line. Considering only her disability assistance, Plaintiff makes approximately $50,000
per year. Thus, even without considering her salary or any other funds, real estate, or personal property,
Plaintiff’s income is over four times the poverty level for a family of one and she does not qualify to proceed on
this lawsuit in forma pauperis. Thus, Plaintiff’s application to proceed in forma pauperis [5] is denied. Plaintiff
is given 30 days from the date of this order to pay the $350 filing fee. If Plaintiff does not comply with this order
within that time frame, her case will be dismissed without prejudice.
The Court also denies Plaintiff’s motion for appointment of counsel [6] at this time. Civil litigants have no
constitutional or statutory right to counsel in federal court. See Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir.
2002); Merritt v. Faulkner, 697 F. 2d 761, 763 (7th Cir. 1983). Nevertheless, a district court may, in its
discretion, “request an attorney to represent any person unable to afford counsel.” Gil v. Reed, 381 F.3d 649, 656
(7th Cir. 2004) (citing 28 U.S.C. § 1915(e)(1)); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997). In deciding
whether to appoint counsel, the Court must “first determine if the indigent has made reasonable efforts to retain
counsel and was unsuccessful or that the indigent was effectively precluded from making such efforts.” Gil, 381
F.3d at 656 (quoting Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992)). If so, the Court must
consider: (1) whether, given the degree of difficulty of the case, the plaintiff appears competent to try it himself
or herself; and (2) whether the assistance of counsel would provide a substantial benefit to the court or the parties,
potentially affecting the outcome of the case. Gil, 381 F.3d at 656 (relying on Farmer v. Haas, 990 F.2d 319,
322 (7th Cir. 1993)). The Court should consider the capabilities of Plaintiff to litigate her own case in deciding
whether or not to appoint counsel. Pruitt v. Mote, 503 F. 3d 647, 654-55 (7th Cir. 2007) (en banc). It should also
be noted that the Court grants pro se litigants wide latitude in the handling of their lawsuits.
After considering the pertinent factors, the Court cannot determine at this early stage of the case whether Plaintiff
would be capable of trying this case herself or whether assistance of counsel would provide a substantial benefit
to the Court or the parties. Therefore, Plaintiff’s motion for appointment of counsel [6] is denied without
prejudice. The Court may reconsider the appointment of counsel issue at a later stage of the case if it Plaintiff
pays the filing fee and if it appears that the standards set forth above are satisfied.

Page 2 of 2