Beiler v. Dunkirk Police Department et al
Filing
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OPINION AND ORDER DENYING 15 Request for Appointment of Counsel by Plaintiff Bret S Beiler (request contained in 15 Amended Complaint). Plaintiff is free to attempt to secure counsel on his own. Clerk DIRECTED to forward a copy of Federal Rules of Civil Procedure 26 through 37 and 45 to the Plaintiff along with a copy of this Order. Signed by Magistrate Judge Roger B Cosbey on 6/26/12. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BRET S. BEILER,
Plaintiff,
v.
MICHAEL E. KREPS and
BRAD MILLER,
Defendants.
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CAUSE NO. 1:12-CV-02
OPINION AND ORDER
I. INTRODUCTION
Pro se Plaintiff Bret Beiler seeks appointment of counsel in this excessive force action
brought under 42 U.S.C. § 1983. (See Docket # 15.). The Court requested that Beiler submit a
Questionnaire for Appointment of Counsel (Docket # 27), which he did (Docket # 32). The
issue was then considered at the initial scheduling conference on June 25, 2012, where Beiler
supplemented his request, and was further taken under advisement. (See Docket # 36.) For the
reasons given below, Beiler’s request will be DENIED.
II. LEGAL STANDARD
No constitutional or statutory right to counsel exists in a civil case. Pruitt v. Mote, 503
F.3d 647, 656-57 (7th Cir. 2007) (citing Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th
Cir. 1992)); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997); Zarnes v. Rhodes, 64 F.3d 285,
288 (7th Cir. 1995). Under 28 U.S.C. § 1915(e)(1), however, a court may request that an
attorney represent an indigent litigant; the decision whether to recruit pro bono counsel is left to
the discretion of the district court. Pruitt, 503 F.3d at 649; Luttrell, 129 F.3d at 936; Zarnes, 64
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F.3d at 288. “When confronted with a request under § 1915(e)(1) for pro bono counsel, the
district court is to make the following inquiries: (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?”1 Pruitt, 503
F.3d at 654-55; see also Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010).
The second prong of this test comes down to a two-fold inquiry that must address “both
the difficulty of the plaintiff’s claims and the plaintiff’s competence to litigate those claims
himself.” Pruitt, 503 F.3d at 654-55; see also Santiago, 599 F.3d at 761. The 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 and jury himself.” Pruitt, 503 F.3d
at 654-55; see also Santiago, 599 F.3d at 761. Stated another way, the district court must
ascertain “whether the plaintiff appears competent to litigate his own claims, given their degree
of difficulty, and this includes the tasks that normally attend litigation: evidence gathering,
preparing and responding to motions and other court filings, and trial.” Pruitt, 503 F.3d at 65455 (emphasis omitted).
Normally, determining a plaintiff’s competence will be assessed by considering “the
plaintiff’s literacy, communication skills, educational level, and litigation experience.” Id; see
also Santiago, 599 F.3d at 762. And if the record reveals the plaintiff’s intellectual capacity and
psychological history, these too would be relevant. Pruitt, 503 F.3d at 654-55; see also
Santiago, 599 F.3d at 762. Overall, the decision to recruit counsel is a “practical one, made in
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Here, Beiler has made a reasonable attempt to obtain counsel on his own, as he has apparently contacted
five different attorneys; none, however, have taken his case. Of course, this is an indication that his claims may
indeed have little merit and that appointing counsel will not make a difference in the case’s ultimate outcome. See
Jackson, 953 F.2d at 1073 (considering plaintiff’s unsuccessful attempts to retain counsel when denying his motion
to appoint counsel).
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light of whatever relevant evidence is available on the question.” Pruitt, 503 F.3d at 654-55; see
also Santiago, 599 F.3d at 762.
III. DISCUSSION
Applying the foregoing two-fold inquiry, it is evident that Beiler is competent to
represent himself in this case. To explain, the suit is a relatively straightforward § 1983 action.
Beiler primarily claims that the police officers used excessive force when they pulled him out of
his vehicle and used a taser on him multiple times while arresting him for public intoxication.
(See Docket # 15.) Therefore, the first factor—the difficulty of his claims—cuts against Beiler’s
request for counsel. See generally Lovelace v. Dall, 820 F.2d 223, 226-27 (7th Cir. 1987)
(denying a motion to appoint counsel where pro se plaintiff could adequately handle the
discovery process and trial in a relatively simple § 1983 case).
Second, Beiler has already adequately articulated his claims in this case, filing a
comprehensive Amended Complaint (Docket # 15) that evinces a thorough knowledge of the
case and familiarity with the facts. Moreover, he read and approved a comprehensive Report of
Parties’ Planning Meeting and competently participated in the scheduling conference. And
Beiler has litigation experience as he represented himself for a year in the criminal case that
arose from his arrest, including his sentencing hearing. Additionally, because the facts of this
case are within Beiler’s particular knowledge—stemming primarily from his active participation
in his criminal case—the task of discovery is apt to be quite limited and certainly something
Beiler is capable of doing. Nevertheless, to assist him, copies of the applicable Federal Rules of
Civil Procedure concerning discovery (which he indicates he has read) are enclosed with this
Order.
Furthermore, the Court has observed through Beiler’s telephonic court appearance and
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filings that he is articulate and has reasonably good communication skills, at least at a sufficient
level to proceed pro se. He is not presently incarcerated and thus has the unfettered ability to
perform his own research. And because he is unemployed, he has adequate time to perform such
research. As a result, the second factor of the two-fold inquiry—the plaintiff’s competence to
litigate the claims himself—also fails to support his request for counsel.
Considering the foregoing, Beiler appears quite competent to adequately handle the
litigation of this relatively simple § 1983 case. Consequently, his request that the Court recruit
counsel for him will be denied.
IV. CONCLUSION
For the reasons stated herein, Plaintiff’s request for appointment of counsel (contained in
Docket # 15) is DENIED. Plaintiff is, of course, free to attempt to secure counsel on his own.
The Clerk is directed to send a copy of Federal Rules of Civil Procedure 26 through 37 and 45 to
the Plaintiff along with a copy of this Order.
SO ORDERED.
Enter for this 26th day of June, 2012.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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