Scholl v. Allen County Superior Court et al

Filing 26

OPINION AND ORDER DENYING 2 MOTION to Appoint Counsel by Lesley Marlin Scholl. Plaintiff is free to attempt to secure counsel on his own. Signed by Magistrate Judge Roger B Cosbey on 6/23/14. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

LESLEY MARLIN SCHOLL,

)
)
Plaintiff,
)
)
v.
)
)
ALLEN COUNTY SUPERIOR COURT, et al., )
)
Defendants.
)

CAUSE NO. 1:14-cv-106

OPINION AND ORDER
Before the Court is a filing by pro se Plaintiff Lesley Marlin Scholl in this breach of
contract and constitutional claims suit, asking that this Court request an attorney to represent
him. (Docket # 2, 14.) Because Scholl is competent to litigate his claims himself, the motion
will be DENIED.
LEGAL STANDARD
“There is no right to court-appointed counsel in federal civil litigation.” Olson v.
Morgan, 750 F.3d 708, 711 (7th Cir. 2014) (citing Pruitt v. Mote, 503 F.3d 647, 656-57 (7th Cir.
2007)). 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. Olson, 750 F.3d at 711; Pruitt, 503 F.3d at 658.
“In deciding whether to request counsel, district courts must ask two questions: ‘(1) [H]as
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?’” Olson, 750 F.3d at 711 (quoting Pruitt, 503 F.3d at 654). The second

portion of this inquiry, stated another way, 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.” Olson, 750 F.3d at 712 (quoting Pruitt, 503 F.3d at 655). In conducting
this inquiry, 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 655 (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. And
if the record reveals the plaintiff’s intellectual capacity and psychological history, these too
would be relevant. Id. Overall, the decision to recruit counsel is a “practical one, made in light
of whatever relevant evidence is available on the question.” Id.
ANALYSIS
To begin, although Scholl claims he attempted to secure counsel for his divorce and other
state court matters, there is no evidence that he attempted to secure counsel for the instant case.
(See Compl. 16, 19, 25.) Therefore, he fails to satisfy the threshold requirement concerning a
request for recruitment of counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th
Cir. 1992) (“If . . . the indigent has made no reasonable attempts to secure counsel (unless
circumstances prevented him from doing so), the court should deny any § 1915(d) motions
outright.”); see also Romanelli v. Suliene, 615 F.3d 847, 851-52 (7th Cir. 2010).
But even if he had satisfied this threshold requirement, it is evident that Scholl is
competent to represent himself in this matter. This suit involves a breach of contract claim

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arising from his divorce, and various constitutional violations stemming from that purported
breach and his current incarceration. (Docket # 2.) Accordingly, the majority of the facts of this
case are within Scholl’s particular knowledge; thus the task of any discovery, if necessary, is apt
to be quite limited and certainly not insurmountable.
Furthermore, Scholl has already comprehensively articulated his claims in this case
(Docket # 1, 7), and sought relief through various motions, including two motions for
reconsideration (Docket # 2, 6, 10, 12, 24). His filings include extensive legal argument and
numerous legal citations. Thus, Scholl has already performed some legal research and is fully
capable of articulating his legal position.
And significantly, Scholl’s intellectual capacity, literacy, communication, and
educational level all support a finding that he is competent to represent himself in this suit.
Scholl apparently was a board-certified emergency medicine physician prior to his incarceration.
(Compl. 11); cf. Henderson v. Ghosh, __ F.3d __, 2014 WL 2757473, at *7 (7th Cir. June 18,
2014) (reversing a district court’s denial of request for counsel where the record reflected
plaintiff’s low IQ, functional illiteracy, and poor education). Indeed, Scholl’s submissions to the
district court were better than the average pro se litigant’s. See Olson, 750 F.3d at 712.
Considering the foregoing, Scholl appears competent to adequately handle the litigation
of this breach of contract and constitutional rights case. Consequently, his motion asking that
the Court request counsel for him will be denied.
CONCLUSION
For the reasons stated herein, Plaintiff’s motion asking that this Court request an attorney

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to represent him (Docket # 2) is DENIED. Plaintiff is, of course, free to attempt to secure
counsel on his own.
Enter for this 23rd day of June, 2014.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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