Downing v. Department of Health and Human Services

Filing 22

OPINION AND ORDER DENYING 5 Letter from Plaintiff Mary J Downing requesting appointment of counsel. Plaintiff is free to attempt to secure counsel on her own. Plaintiff to file an Opening Brief on or before 8/24/2012. If the opening brief is not filed, the case will be subject to dismissal. Signed by Magistrate Judge Roger B Cosbey on 7/25/12. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MARY J. DOWNING,
Plaintiff,
v.
DEPARTMENT OF HEALTH
AND HUMAN SERVICES, sued as
Kathleen Sebelius, Secretary,
Defendant.

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CAUSE NO. 1:12-cv-22

OPINION AND ORDER
Before the Court is a letter (Docket # 5) and a questionnaire and its supplement (Docket #
18, 20) filed by pro se Plaintiff Mary Downing, requesting that the Court appoint counsel to
represent her in this appeal from the denial of Medicare Part B payments for her repeated use of
ambulance services. Because Downing’s case is not a difficult one and since she is competent to
litigate it, her motion will be DENIED.
I. LEGAL STANDARD
“Congress has not specifically authorized courts to appoint counsel for plaintiffs
proceeding under 42 U.S.C. § 405.”1 Kirkpatrick v. Astrue, No. 08-0407, 2008 WL 879407, at

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Although Downing challenges her denial of Medicare Part B coverage under the Medicare statute, 42
U.S.C. § 1395ff, this statute authorizes judicial review “as provided in [42 U.S.C. §] 405(g),” Gordian Med., Inc. v.
Sebelius, No. CV 10-3933 CAS (FFMx), 2012 WL 1155849, at *3 (C.D. Cal. Apr. 4, 2012) (citing 42 U.S.C. §
1395ff(b)(1)(A)). As such, the rationale regarding appointment of counsel in social security appeals would seem to
apply here. But even if it does not, no constitutional or statutory right to counsel exists in a civil case. Santiago v.
Walls, 599 F.3d 749, 760 (7th Cir. 2010); Pruitt v. Mote, 503 F.3d 647, 656-57 (7th Cir. 2007) (citing Jackson v.
Cnty. 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).

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*1 (W.D. La. Mar. 31, 2008). “Thus, the court must look to the more general authority of 28
U.S.C. § 1915(e)(1) to consider [a] plaintiff’s request for court-appointed counsel.” Id.
Under 28 U.S.C. § 1915(e)(1), 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. Santiago, 599 F.3d at 760-61; Pruitt, 503 F.3d at 649; Luttrell, 129 F.3d at 936; Zarnes,
64 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?” Pruitt, 503 F.3d
at 654-55; see also Santiago, 599 F.3d at 761.
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
[her]self.” 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 [her]self.” 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 [her] 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
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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
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.
II. ANALYSIS
Here, the first prong of the foregoing legal standard—that is, whether Downing has made
a reasonable attempt to obtain counsel on her own—is not in issue. She apparently has contacted
at least five different attorneys; none, however, have taken her case. (See Docket # 18, 20.) Of
course, this is an indication that her case 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).
Nevertheless, the Court will proceed to the second prong of the inquiry—the difficulty of
Downing’s claims and her competence to litigate them herself. As to the difficulty of the case,
this suit is a relatively straightforward appeal of a denial of Medicare Part B payments, which
does not seem unduly complex. See Foggie ex rel. Geronimo v. Comm’r of Soc. Sec., 243 F.
Supp. 2d 2, 4 (S.D.N.Y. 2003) (denying appointment of counsel in a social security appeal when
the case did not present novel or overly complex legal issues); cf. Kirkpatrick, 2008 WL 879407,
at *1 (noting that a social security appeal, by nature, is not unduly complex). Moreover, just as
in a social security appeal, “[t]he matter will be decided by the court upon the existing
administrative record and after consideration of the parties’ arguments as presented in written
memoranda.” Kirkpatrick, 2008 WL 879407, at *1. Accordingly, “skill in the presentation of
evidence and in cross-examination is not required.” Id. And “because these matters are decided
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on the existing record and written briefs, a trial will not be held.” Id. Thus, the first factor—the
difficulty of her claims—cuts against Downing’s request for counsel. See id. at *1-2 (denying a
motion to appoint counsel in an appeal from the denial of social security disability benefits).
Second, Downing has already adequately articulated her claims in this case by filing a
complaint that included the relevant facts along with a supplement (Docket # 1, 8), see Foggie,
243 F. Supp. 2d at 4 (denying request to appoint counsel when the plaintiff had “shown the
ability to properly file a complaint including the relevant facts of her case”), and actively
participating in the July 25, 2012, status conference despite her difficulties hearing (Docket #
21). Furthermore, the administrative record reveals that Downing has a college education (see
Tr. 332) and wrote intelligible letters in support of her position (Tr. 23-26, 297-301). Therefore,
considering her education, writing ability, and participation in the status conference, Downing
has reasonably good communication skills, which the transcript of her administrative hearing
testimony further evidences. (Tr. 311-33.) Moreover, the facts of the case are within Downing’s
particular knowledge and, as explained supra, are already articulated in the administrative
record; therefore, the task of developing the record is not at issue. As a result, the second factor
of the two-fold inquiry—the plaintiff’s competence to litigate the claims herself—also fails to
support Downing’s request for counsel.
Considering the foregoing, Downing appears quite competent to adequately handle the
litigation of this relatively straightforward appeal of the denial of her request for Medical Part B
payments. Consequently, her motion asking that the Court recruit counsel for her will be denied.
III. CONCLUSION
For the reasons stated herein, Plaintiff’s request for appointment of counsel (Docket # 5)
is DENIED. Plaintiff is, of course, free to attempt to secure counsel on her own. Plaintiff is to
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file an opening brief on or before August 24, 2012. If the opening brief is not filed, the case will
be subject to dismissal.
Enter for this 25th day of July, 2012.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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