Woods v. Southern Illinois University Carbondale

Filing 10

ORDER, GRANTING 2 MOTION for Leave to Proceed in forma pauperis filed by Anthony T Woods, DENYING 3 MOTION for Recruitment of Counsel filed by Anthony T Woods, and GRANTING 4 MOTION for Service of Process at Government Expense filed by Anthony T Woods. The Court DIRECTS the Clerk to complete service as provided herein. Signed by Judge David R. Herndon on 8/17/2015. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Anthony T. Woods,
Plaintiff,
vs.

No. 3:15-cv-597-DRH-SCW

Southern Illinois University
Carbondale
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
I. INTRODUCTION
On May 29, 2015, plaintiff filed a complaint against Southern Illinois
University Carbondale alleging employment discrimination. The matter was
assigned to the undersigned Judge on July 29, 2015. Presently before the Court is
the plaintiff’s motion to proceed in forma pauperis (Doc. 2), motion for
appointment of counsel (Doc. 3), and motion for service of process at government
expense (Doc. 4).
II. ANALYSIS
A. Motion for Pauper Status and Motion for Service at Government Expense
By granting a motion for pauper status, a court authorizes a lawsuit to
proceed without prepayment of fees. Under 28 U.S.C. § 1915(e)(2), the Court
must screen any indigent’s complaint (those filed by prisoners and non-prisoners
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alike) and dismiss the complaint if (a) the allegation of poverty is untrue, (b) the
action is frivolous or malicious, (c) the action fails to state a claim upon which can
be granted, or (d) the action seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Plaintiff’s motion survives § 1915(e)(2) review. Plaintiff signed a declaration
contained in his motion to proceed in forma pauperis documenting his poverty.
The action appears to be neither frivolous nor malicious. See Schepers v.

Commissioner of Indiana, 691 F.3d 909 (mistakes on a sex offender registry can
implicate constitutionally protected liberty interests). At this point, the Court
cannot conclude that the complaint fails to state a claim or that the named
defendant is immune from suit.
Accordingly, the Court GRANTS the plaintiff’s motion to proceed in forma

pauperis (Doc. 2) and his motion for service of process at government expense
(Doc. 4).
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for
Defendant Southern Illinois University Carbondale: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
complaint, and this Memorandum and Order to the defendant at the address
given in the complaint (see Doc. 1, p. 1). If the defendant fails to sign and return
the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the

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date the forms were sent, the Clerk shall take appropriate steps to effect formal
service on the defendant pursuant to Federal Rule of Civil Procedure 4(c)(3), and
the Court will require Defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
It is FURTHER ORDERED that plaintiff shall serve upon the defendant, or
if an appearance has been entered by counsel, upon that attorney, a copy of every
pleading or other document submitted for consideration by this Court. Plaintiff
shall include with the original paper to be filed a certificate stating the date that a
true and correct copy of the document was mailed to each defendant or counsel.
Any paper received by a district judge or a magistrate judge which has not been
filed with the Clerk or which fails to include a certificate of service will be
disregarded by the Court.
Finally, plaintiff is ADVISED that he is under an obligation to keep the
Clerk of Court and each opposing party informed of any change in his address;
the Court will not independently investigate his whereabouts. This shall be done
in writing and not later than 7 days after a change in address occurs. Failure to
comply with this order will cause a delay in the transmission of court documents
and may result in dismissal of this action for want of prosecution. See
Fed.R.Civ.P. 41(b).

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B. Motion for Appointment of Counsel
As to plaintiff’s motion for appointment of counsel, the Court finds that the
plaintiff has not demonstrated under Seventh Circuit standards that he is entitled
to appointed counsel at this time. 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.
Based on the pleadings, the Court is unable to determine whether plaintiff
made a reasonable attempt to obtain counsel. Plaintiff does not state which

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lawyers he has contacted or how he went about trying to find a lawyer. Plaintiff
failed to respond to Question # 2 on the motion for recruitment of counsel. The
Court notes that there is not a bright line test for compliance with this
requirement. For example, calling a law office without having a meaningful
discussion about the case does not qualify as an attempt to hire counsel on one's
own in this Court's interpretation of the requirement.
Accordingly, the Court DENIES without prejudice the plaintiff’s motion to
appoint counsel (Doc. 3).
III. CONCLUSION
For the reasons discussed herein, the Court GRANTS the plaintiff’s motion
to proceed in forma pauperis (Doc. 2) and his motion for service of process at
government expense (Doc. 4). The Court DIRECTS the Clerk's Office to complete
service as directed herein. The Court DENIES without prejudice the plaintiff’s
motion to appoint counsel (Doc. 3).
IT IS SO ORDERED.
Signed this 17th day of August, 2015

Digitally signed
by David R.
Herndon
Date: 2015.08.17
14:34:48 -05'00'
United States District Court

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