Mosley v. McPeak et al

Filing 22

ORDER APPOINTING COUNSEL. Attorney Courtney C. Stirrat is appointed to represent Plaintiff Michael A. Mosley. Granting 13 MOTION to Appoint Counsel filed by Michael A. Mosley. Finding as moot 15 MOTION for Service of Process at Government Expense filed by Michael A. Mosley. Signed by Magistrate Judge Donald G. Wilkerson on 6/24/2011. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL MOSLEY,
Plaintiff,
v.
OFFICER SEAN McPEAK, OFFICER
ROBERT DAVENPORT, and ILLINOIS
SECURITY & DEPUTY OF ST. CLAIR
COUNTY JAIL,
Defendants.

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Case No. 3:11-cv-113-WDS-DGW

ORDER
At a hearing held on May 12, 2011, the Court denied without prejudice Plaintiff Michael
Mosley’s Motion to Appoint Counsel finding that he had not attempted to retain counsel on his
own (Doc. 12). Plaintiff has now filed a second Motion for Appointment of Counsel (Doc. 13).
That motion is GRANTED.
DISCUSSION
A district court “may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). There is no constitutional or statutory right to counsel for a
civil litigant, however. Stroe v. Immigration and Naturalization Services, 256 F.3d 498, 500 (7th
Cir. 2001); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Appointment of counsel lies
within the sound discretion of the trial court. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007) (citing Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006)).
In determining whether to appoint counsel, the Court is directed to make a two-fold
inquiry: “(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 (citing Farmer v. Haas,
990 F.2d 319, 321-22 (7th Cir. 1993)). The first prong of the analysis is a threshold question. If
a plaintiff has made no attempt to obtain counsel on his own, the court should deny the request.
See Pruitt, 503 F.3d at 655.
In analyzing whether a plaintiff is competent to litigate a case himself, the Court should
consider the complexity of the case, and make a determination that is “particularized to the
person and the case before the Court.” Santiago v. Walls, 599 F.3d 749, 762 (7th Cir. 2010).
(quoting Pruitt, 503 F.3d at 656). The Court is to look at a plaintiff’s “literacy, communication
skills, educational level, and litigation experience.” Santiago, 599 F.3d at 762 (quoting Pruitt,
503 F.3d at 655). The Seventh Circuit cautions district courts to use “significant prudence” in
assessing a plaintiff’s ability to represent himself. Id.
Plaintiff has met the threshold burden of showing that he has made a reasonable attempt
to obtain counsel on his own. Plaintiff indicates that he contacted three attorneys – Pearson
Bush, Renett Saleeby, and Tim Engleman – and none would take his case. Regarding his ability
to litigate the case himself, Plaintiff states that his highest level of education is “some high
school.” He also states that he is disabled. The Court further notes that while Defendants
McPeak and Davenport have filed a Motion to Dismiss, they have moved for dismissal of only
the false arrest claims. If the motion is granted, claims involving excessive force will remain. In
reviewing these circumstances, the Court finds appointment of counsel warranted in this case.
Plaintiff’s Motion for Appointment of Counsel (Doc. 13) is GRANTED.
Accordingly, attorney Countney C. Stirrat of the law firm Tonkin & Mondl, P.C., 701
Market Street, Suite 260, St. Louis, Missouri, 63126, is hereby APPOINTED to represent the

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Plaintiff in this matter pursuant to SDIL-LR83.1(i).1 The Court informs Attorney Stirrat that the
Plaintiff resides at 404 S. 10th St., East St. Louis, IL 62201.
Attorney Stirrat may share her responsibilities with an associate who is also admitted to
practice in this district court. Attorney Stirrat shall enter her appearance on or before July 13,
2011. The Court informs Attorney Stirrat that an in-person scheduling and discovery conference
is set before United States Magistrate Judge Donald G. Wilkerson on that date.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Stirrat who is the legal professional in this relationship. Without commenting on the
validity of the matter in litigation, counsel is reminded and plaintiff is advised that counsel, even
though appointed by the Court, has an obligation under the rules to refrain from filing frivolous
pleadings. As a consequence, counsel will likely, from time to time, advise Plaintiff against
taking a certain course of action. While Plaintiff may not totally agree with counsel’s advice, he
should realize that, in the long run, such advice will be in his best interest because it is in
compliance with the law. Also, counsel may advise Plaintiff to pursue additional claims or to
abandon certain existing claims.
Counsel, of course, maintains an ethical obligation to fully and vigorously represent his
client, but only to the extent that it does not impede his ethical obligation to follow the rules of
the Court and the law. If Plaintiff wants to be represented by counsel, he will have to cooperate
fully with counsel. The Court will not accept any filings from Plaintiff individually while he
is represented by counsel, except a pleading that asks that he be allowed to have counsel
withdraw from representation. If counsel is allowed to withdraw at the request of Plaintiff, it is
unlikely the Court will appoint other attorney to represent him.

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Under SDIL-LR 83(i), every member of the bar of this Court shall be available for appointment to represent or
assist in the representation of those who cannot afford to hire an attorney.

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Because Plaintiff is proceeding in forma pauperis, if there is a monetary recovery in this
case (either by verdict or settlement), any unpaid out-of-pocket costs must be paid from the
proceeds. See SDIL-LR 3.1(c)(1). If there is no recovery in the case (or the costs exceed any
recovery), the Court has the discretion to reimburse expenses. The funds available for this
purpose are limited, and counsel should use the utmost care when incurring out-of-pocket costs.
In no event will funds be reimbursed if the expenditure is found to be without a proper basis.
The Court has no authority to pay attorney’s fees in this case. Counsel is encouraged to enter
into a contingent fee contract with Plaintiff to address both the payment of attorney’s fees
and costs should Plaintiff prevail.
The Clerk of Court is DIRECTED to send a copy of this Order and the standard letter
concerning appointment of counsel to Attorney Stirrat immediately.
Motion to Serve Process at Government Expense
Also pending before the Court is Plaintiff’s Motion for Service of Process at Government
Expense (Doc. 15). This motion is found to be MOOT. The Court has already directed the
United States Marshals Service to serve defendants at no cost to Plaintiff (Doc. 6). To date, both
named defendants – Officers McPeak and Davenport – have been served and have answered the
complaint. As for the third defendant, named in the caption of the complaint as Ill. Security &
Deputy of St. Clair Co. Jail, Plaintiff states, “The 3rd person a Deputy Sheriff also can be
identified by humerous and casual incarsirations through Plaintiff mental and physical unability
to adapt in society based on arrests and homelessness.” This description is insufficient to
identify a defendant by name capable of being served. The Plaintiff must provide the Court with
additional identifying information so that defendant can be served process. The Court advises
Plaintiff to work with his newly-appointed attorney to identify the third yet-unnamed defendant.

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If Plaintiff successfully identifies the third defendant, he should file an amended complaint
naming that individual. The Court will then direct the USMS to serve that defendant without
cost to Plaintiff.
IT IS SO ORDERED.
DATED: June 24, 2011

DONALD G. WILKERSON
United States Magistrate Judge

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