Tullis v. Dozier et al

Filing 18

ORDER denying without prejudice 15 Motion for Discovery; 16 Motion to Appoint Counsel; and 17 Motion for Leave to File Amended Complaint. Signed by Magistrate Judge Donald G. Wilkerson on 9/7/2012. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PATRICK TULLIS,

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Plaintiff,
v.
ANTHONY A. DOZIER, et al.,
Defendants.

Case No. 3:12-cv-107-GPM-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are a Motion for Discovery (Doc. 15), a Motion for
Appointment of Counsel (Doc. 16), and a Motion for Leave to File an Amended Complaint (Doc.
17). For the reasons set forth below, these motions are DENIED without prejudice.
MOTION FOR DISCOVERY
Plaintiff Tullis asks Defendants to provide documents from internal affairs investigations,
adjustment committee reports, and grievances. These requests are premature. Defendants have
not been served process; they have not filed responsive pleadings. The Clerk sent out requests for
waivers of service on August 24, 2012, but responses are not due until September 24, 2012. Until
Defendants have been served and filed responsive pleadings, there are no parties from whom
Plaintiff may seek discovery under the Federal Rules of Civil Procedure. If Plaintiff has difficulty
obtaining necessary documents from Defendants after discovery has begun, he may contact the
Court at that time. Until then, the motion is DENIED without prejudice.

MOTION FOR APPOINTMENT OF COUNSEL
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 Tullis has met the threshold burden of demonstrating he has made a reasonable

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attempt to obtain counsel on his own before seeking appointment from the Court. He includes
with his motion three letters from attorneys declining to represent him in this matter. Although
Tullis has met his initial burden, the Court believes appointment of counsel is premature. As
noted above, no defendant has been served, and no defendant has filed a responsive pleading.
Until Defendants have answered and raised affirmative defenses, and the Court has issued its
initial scheduling orders, appointment of counsel is not warranted. If, after Defendants have been
served and have answered the complaint, Tullis experiences difficulty conducting discovery, or
otherwise prosecuting the case, he may seek appointment of counsel again at such time. The
Court also leaves open the possibility of revisiting the issue on its own motion. For now,
however, the Motion to Appoint Counsel (Doc. 16) is DENIED without prejudice.
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
Finally, Plaintiff informs the Court that since he filed the original complaint he has
continued to experience retaliation. He seeks to amend the complaint to add a party. Under
SDIL-LR 15.1, a party seeking to amend a pleading must provide a proposed amended pleading
for the Court’s review. Plaintiff did not provide the Court with an amended complaint that
includes all claims against all defendants. He must do so before the Court will consider whether it
will grant leave to file an amended complaint. Accordingly, the Motion for Leave to File an
Amended Complaint (Doc. 17) is DENIED without prejudice.
IT IS SO ORDERED.
DATED: September 7, 2012

DONALD G. WILKERSON
United States Magistrate Judge
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