Stewart v. Allen County Fort Wayne Police Department et al

Filing 33

OPINION AND ORDER: DENYING requests re 21 Letter from Tyquan Stewart stating that he was unsuccessful in obtaining counsel and 32 Letter from Tyquan Stewart (Bey) asking for appointed counsel. Stewart is, of course, free to attempt to secure counsel on his own. Signed by Magistrate Judge Susan L Collins on 11/14/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TYQUAN STEWART,
Plaintiff,
v.
G. HENSLER, et al.,
Defendants.

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NO. 1:16-cv-00316-SLC

OPINION AND ORDER
On October 19, 2017, pro se Plaintiff Tyquan Stewart filed a letter (DE 21) in this 42
U.S.C. § 1983 case, stating that he has contacted several attorneys and legal associations
concerning this matter, but he was unsuccessful in obtaining an attorney to represent him. On
November 6, 2017, Stewart filed another letter (DE 32), asking that the Court appoint counsel
for him. For the following reasons, Stewart’s letters, which the Court will construe to be a
motion requesting the appointment of counsel, 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)). But 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. 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.” Id. 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
Stewart represents that he has contacted at least three attorneys or legal associations
about this matter, but none have taken his case. See Jackson v. Cty. 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.”). Thus, although Stewart has satisfied the threshold element of a request for
counsel, several attorneys have chosen to pass up the opportunity to represent him. This
circumstance speaks rather directly to the merits of Stewart’s case and raises a fair inference that
these attorneys did not view his case as meritorious. See id. (considering plaintiff’s unsuccessful
attempts to retain counsel when denying his motion to appoint counsel).
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As to the second portion of the inquiry, Stewart seems capable of litigating his claims
himself, at least at this stage of the proceedings. He has already articulated his claims in this suit
(DE 1; DE 4; DE 12); sought various forms of relief through filing motions (DE 3; DE 5; DE 9;
DE 21; DE 32); participated in the parties’ planning meeting (DE 24); participated in a Rule 16
preliminary pretrial conference (DE 31); and served Defendants with a written discovery request
(DE 29). Furthermore, this suit is a relatively straightforward § 1983 action: Stewart claims that
Defendants violated his Fourth Amendment rights when they detained, searched, and arrested
him in June 2016 after the vehicle he was riding in was pulled over by the Defendant officers.
(DE 1; DE 4; DE 7; DE 12). Accordingly, the first factor—the difficulty of his claims— cuts
against Stewart’s 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).
Moreover, it is evident from his filings and participation in the preliminary pretrial
conference that Stewart has reasonably good communication skills, at least at a sufficient level to
proceed pro se. Cf. Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (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” in a case involving complicated medical
matters); 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). Further, Stewart is not presently incarcerated and thus has the freedom to
perform his own research. Many of the facts of this case are within his particular knowledge;
therefore, the task of discovery is apt to be quite limited. And although Stewart mentioned at the
preliminary pretrial conference that he suffers from post traumatic stress disorder and a
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schizoaffective disorder, there is no indication that these conditions would preclude him from
representing himself in this matter. Rather, Stewart reported that he is under the care of a
psychiatrist and takes medication for these conditions.
Considering the foregoing, Stewart appears competent to adequately handle the litigation
of this § 1983 case at this stage of the proceedings. Consequently, to the extent he has asked that
the Court recruit counsel for him, that request will be denied. If Stewart’s case survives the
filing of dispositive motions, the Court will reconsider recruiting counsel for him upon his
further motion. See Mungiovi v. Chi. Hous. Auth., No. 94 C 6663, 1994 WL 735413, at *2 (N.D.
Ill. Dec. 19, 1994) (“[The] court’s general practice is to consider appointment of counsel if and
when it appears that the action has sufficient merit to require complex discovery or an
evidentiary hearing.” (citation omitted)).
CONCLUSION
For the forgoing reasons, Stewart’s letters (DE 21; DE 32), which request that the Court
appoint him counsel, are DENIED. Stewart is, of course, free to attempt to secure counsel on his
own.
SO ORDERED.
Entered this 14th day of November 2017.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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