Gallagher et al v. Cunningham et al
Filing
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MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 10/27/2014.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT GALLAGHER,
Plaintiff,
vs.
RAY DUERSEN, et al.,
Defendants.
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13 C 7891
14 C 3801
14 C 3803
Judge Feinerman
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Gallagher has moved for attorney representation under 28 U.S.C.
§ 1915(e)(1) in each of these three related cases. The motions are denied.
Earlier this year, the Seventh Circuit observed:
There is no right to court-appointed counsel in federal civil litigation. Pruitt
v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc). District courts may
nonetheless ask lawyers to represent indigent litigants on a volunteer basis.
See 28 U.S.C. § 1915(e)(1). Whether to recruit an attorney is a difficult
decision: Almost everyone would benefit from having a lawyer, but there are
too many indigent litigants and too few lawyers willing and able to volunteer
for these cases. District courts are thus placed in the unenviable position of
identifying, among a sea of people lacking counsel, those who need counsel
the most.
Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). “In deciding whether to request counsel,
district courts must ask two questions: ‘(1) [H]as 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?’” Ibid. (quoting Pruitt, 503
F.3d at 654) (alteration in original).
Gallagher’s motions indicate that he has made a reasonable effort to obtain counsel, so
the court turns to the second question, which requires it to “consider[] both the complexity of the
case and [Plaintiff’s] capabilities.” Olson, 750 F.3d at 711. As for the complexity of the case,
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the facts underlying and law governing Plaintiff’s claims—which principally allege unlawful
arrest and excessive force under the Fourth Amendment, malicious prosecution and intentional
infliction of emotional distress under state law, and ineffective assistance of counsel under the
Sixth Amendment—are “straightforward” and “not especially complex,” and “the relevant
substantive and procedural rules [can] be explained to [Plaintiff] in pretrial conferences and
orders.” Ibid. In fact, at this morning’s hearing, Gallagher argued that this is a “pretty cut and
dry case” and “a simple case.”
As for Gallagher’s capacity to adequately litigate a matter of this nature, it is not
necessary for the court to find that he is “as proficient as a seasoned civil-rights attorney;
[rather,] the test 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 or jury
himself.’” Id. at 712 (quoting Pruitt, 503 F.3d at 655). In applying this test, the court must
“evaluate[] [Gallagher’s] abilities by looking at his pleadings and competence in early phases of
the litigation,” and determine whether his “submissions are well written and [whether] he
appears capable of following instructions and making intelligible arguments.” Ibid. (internal
quotation marks omitted); see also Romanelli v. Suliene, 615 F.3d 847, 853 (7th Cir. 2010).
Gallagher’s written submissions, while not without their flaws, competently set forth his legal
and factual positions. Gallagher’s oral presentations at the numerous hearings in these cases
have shown him to be articulate, quick-witted, intelligent, and able to respond coherently and
logically to legal arguments. While these characterizations would remain true even if he were in
custody, it bears mention that Gallagher is not incarcerated. And the court adds for good
measure that at this morning’s hearing, Gallagher related that “in [his] criminal case, [his]
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research on the case allowed [him] to win one charge, and that was the bulk of the case”—which
further supports the court’s assessment of his capabilities to litigate these civil cases pro se.
In sum, having considered the pertinent facts and applied the governing law, the court
concludes that Gallagher is more than capable of litigating these cases on his own. See Macon v.
Mahone, __ F. App’x __, 2014 WL 5369299, at *3 (7th Cir. Oct. 23, 2014); Barrett v. Wallace,
570 F. App’x 598, 600 (7th Cir. 2014); Turner v. Cox, 569 F. App’x 463, 468 (7th Cir. 2014);
Rivera v. Lindmeier, 560 F. App’x 619, 621 (7th Cir. 2014); Olson, 750 F.3d at 711-12. His
motions for attorney representation accordingly are denied.
October 27, 2014
United States District Judge
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