Kizer v. Allen County Sheriff's Department et al

Filing 21

OPINION AND ORDER: DENYING 18 MOTION to Appoint Counsel by Plaintiff Clarence L Kizer. Plaintiff is free to attempt to secure counsel on his own. Signed by Magistrate Judge Roger B Cosbey on 9/4/2014. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CLARENCE L. KIZER,
Plaintiff,
v.
ALLEN COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CAUSE NO. 1:14-cv-226

OPINION AND ORDER
Before the Court is a request by pro se Plaintiff Clarence Kizer in this 42 U.S.C. § 1983
case advancing an Eighth Amendment claim, asking that this Court request an attorney to
represent him. (Docket # 18.) Because Kizer is competent to litigate this case 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, 649 (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 (alteration in original) (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, there is no evidence that Kizer has contacted any attorneys concerning his case.
Therefore, he fails to satisfy the threshold requirement concerning a request for recruitment of
counsel. See Jackson v. Cnty. 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 Kizer is
competent to represent himself in this matter. This suit is a relatively straightforward § 1983
action: Kizer claims that Defendants were deliberately indifferent to his safety when transporting

2

him to a medical appointment during his incarceration at the Allen County Jail in February 2014,
in violation of the Eighth Amendment. (Docket # 4, 19.) Accordingly, Kizer’s assertion that
“the issues in the case may get too complex for him” is not persuasive; instead, the first
factor–the difficulty of his claims–cuts against his request for counsel. See 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).
Furthermore, Kizer has already comprehensively articulated his claims in this suit
(Docket # 4, 19); participated in a Rule 16 Preliminary Pretrial Conference (Docket # 15); and
sought relief through various motions, including a motion to amend, motion to dismiss, and
motion to appoint counsel (Docket # 12, 17, 18). Consequently, it is clear that Kizer is literate
and has adequate communication skills, at least for purposes of representing himself. Cf. Dewitt
v. Corizon, Inc., __ F.3d __, 2014 WL 3686080, at *3 (7th Cir. July 25, 2014) (reversing a
district court’s denial of request for counsel pertaining to “a blind and indigent prisoner with a
tenth-grade education and no legal experience”); Henderson v. Ghosh, 755 F.3d 559, 567 (7th
Cir. 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, Kizer’s submissions to the district court are much better than the average pro se
litigant’s. See Olson, 750 F.3d at 712. Moreover, the majority of the facts of this case are likely
within Kizer’s particular knowledge; thus the task of any discovery, if necessary, is apt to be
quite limited and certainly not insurmountable.
Considering the foregoing, Kizer appears competent to adequately handle the litigation of
this § 1983 deliberate indifference case. Consequently, his motion asking that the Court request

3

counsel for him will be denied.
CONCLUSION
For the reasons stated herein, Plaintiff’s Request for Court-Appointed Counsel (Docket #
18) is DENIED. Plaintiff is, of course, free to attempt to secure counsel on his own.
Enter for this 4th day of September, 2014.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

4