Hooker v. RIM Hospitality
Filing
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MEMORANDUM AND ORDER, granting 2 MOTION for Leave to Proceed in forma pauperis filed by Debra Hooker and denying without prejudice 3 MOTION for Recruitment of Counsel filed by Debra Hooker. Signed by Judge J. Phil Gilbert on 3/31/2014. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEBRA HOOKER,
Plaintiff,
v.
Case No. 14-cv-354-JPG-PMF
RIM HOSPITALITY,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion for leave to proceed in forma pauperis
(Doc. 2), motion for recruitment of counsel (Doc. 3) and motion for service of process at
government expense (Doc. 4) filed by plaintiff Debra Hooker.
I.
Motion for Leave to Proceed In Forma Pauperis (Doc. 2)
A federal court may permit an indigent party to proceed without pre-payment of fees.
28 U.S.C. § 1915(a)(1). Nevertheless, a court can deny a qualified plaintiff leave to file in forma
pauperis or can dismiss a case if the action is clearly frivolous or malicious or fails to state a claim.
28 U.S.C. § 1915(e)(2)(B)(i) & (ii). The test for determining if an action is frivolous or without
merit is whether the plaintiff can make a rational argument on the law or facts in support of the
claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247
(7th Cir. 1983). An action fails to state a claim if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
When assessing a petition to proceed in forma pauperis, a district court should inquire into the
merits of the petitioner’s claims, and if the court finds them to be frivolous, it should deny leave to
proceed in forma pauperis. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982).
The Court is satisfied from Hooker’s affidavit that she is indigent. Furthermore, the Court
does not believe that this action is frivolous or malicious. Therefore, the Court GRANTS the
motion to proceed on appeal in forma pauperis without prepayment of fees and costs (Doc. 2).
II.
Motion for Service of Process at Government Expense (Doc. 4)
The plaintiff having been granted leave to proceed in forma pauperis, the Court must order
service of process by a United States Marshal or Deputy Marshal or other specially appointed
person. Fed. R. Civ. P. 4(c)(3).
If the plaintiff wishes the United States Marshals Service to serve process in this case, the
Court DIRECTS the plaintiff to provide to the United States Marshals Service the summons
issued in this case, the appropriately completed USM-285 forms and sufficient copies of the
complaint for service.
The Court further DIRECTS the United States Marshal, upon receipt of the
aforementioned documents from the plaintiff and pursuant to Federal Rule of Civil Procedure
4(c)(3), to serve a copy of summons, complaint and this order upon the defendants in any manner
consistent with Federal Rule of Civil Procedure 4, as directed by the plaintiff. Costs of service
shall be borne by the United States.
III.
Motion for Recruitment of Counsel (Doc. 3)
Whether to recruit an attorney to represent an indigent civil litigant is within the sound
discretion of the district court. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007); Jackson v.
County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). There is absolutely no right to
appointment of counsel in a civil case. Pruitt, 503 F.3d at 656-57. Pursuant to 28 U.S.C.
§ 1915(e)(1), the Court may request the assistance of counsel in an appropriate civil case where a
litigant is proceeding in forma pauperis. Mallard v. United States District Court, 490 U.S. 296
(1989); Pruitt, 503 F.3d at 649. Local Rule 83.1(i) obligates members of the bar of this Court to
accept appointments, provided an appointment is not made more than once during a 12-month
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period.
In deciding the request for counsel, the Court should ask (1) whether the indigent plaintiff
made a reasonable attempt to obtain counsel or been effectively precluded from doing so and (2)
whether, given the difficulty of the case, the plaintiff appears at that time to be competent to
litigate it himself. Pruitt, 503 F.3d at 654-55 (citing Farmer v. Haas, 990 F.2d 319, 321-22 (7th
Cir. 1993)). “[T]he question 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 655. In making this inquiry, courts usually consider factors such as the
plaintiff’s literacy, communication skills, educational level, litigation experience, intellectual
capacity and psychological history. Id.
Plaintiff has not demonstrated that she has made reasonable attempts to retain counsel and
has not shown that she was effectively precluded from making a diligent effort in this regard. She
has stated that she is waiting for one attorney to call her back, but inquiring of one attorney is not
enough to show a diligent effort to find counsel. The Court notes that attorneys often take the
kind of case the plaintiff has brought on a contingency fee basis and that the plaintiff will likely be
able to find counsel to represent her should her case have a likelihood of success. For this reason,
the Court DENIES without prejudice the motion for appointment of counsel (Doc. 3). She may
reapply if she is unsuccessful in locating counsel on her own after making a diligent effort to
obtain representation.
IT IS SO ORDERED.
DATED: March 31, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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