Hovermale v. Illinois Department of Human Services et al

Filing 9

MEMORANDUM AND ORDER, granting 2 MOTION for Leave to Proceed in forma pauperis filed by Dustin M. Hovermale, and 4 MOTION for Service of Process at Government Expense filed by Dustin M. Hovermale. The Court denies 3 MOTION for Recruitment of Counsel filed by Dustin M. Hovermale. Signed by Judge J. Phil Gilbert on 11/19/2014. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DUSTIN M. HOVERMALE,
Plaintiff,
v.

Case No. 14-cv-00969-JPG-DGW

ILLINOIS DEPARTMENT OF HUMAN
SERVICES and AFSCME COUNCIL 31,
Defendants.
MEMORANDUM AND ORDER
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 Plaintiff’s affidavit that he 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).

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). Therefore, Plaintiff's Motion for Service of Process at
Government Expense (Doc. 4) is GRANTED.
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.
With regard to Plaintiff's Motion for Recruitment of Counsel (Doc. 3), whether to appoint
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 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 he has made reasonable attempts to retain counsel and
has not shown that he was effectively precluded from making a diligent effort in this regard.
Furthermore, it appears to the Court that, at this stage of the litigation, the Plaintiff is competent
to litigate his claim himself. For these reasons, the Court DENIES his motion for appointment
of Counsel (Doc. 3).
IT IS SO ORDERED.
DATED: 11/19/2014

s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE