Burns v. Apollo et al

Filing 55

OPINION AND ORDER DENYING 51 MOTION to Appoint Counsel and takes pltf's 52 request for a jury trial UNDER ADVISEMENT. The Court AFFORDS the Plaintiff until May 30, 2013, within which to offer a reason for not meeting the deadline in Rule 38(b); and AFFORDS the Defendants until June 7, 2013, within which to advise the Court of any strong and compelling reasons why the Plaintiffs untimely jury demand should not be granted. Signed by Judge Rudy Lozano on 5/14/13. cc:pltf (kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT L. BURNS,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
MR. APOLLO, et al.,
Defendants.

CAUSE NO. 2:12-CV-158

OPINION AND ORDER
This matter is before the Court on Plaintiff Robert Burns’s
motion for appointment of counsel and on his request for a jury
trial, which is contained in a document entitled In support of
Motion for Appointment of Counsel. For the reasons set forth below,
the Court DENIES the Plaintiff’s motion for appointment of counsel
and takes his request for a jury trial UNDER ADVISEMENT.
This is Burns’s second motion for appointment of counsel. The
Court denied his first request for appointment of counsel because
his case does not involve exceptional circumstances and is not
complicated. (DE 17 at 2).
There is no constitutional or statutory right to courtappointed counsel in federal civil litigation. Pruitt v. Mote, 503
F.3d 647, 649 (7th Cir. 2007). However, the federal in forma
pauperis statute provides that “[a] court may request an attorney
to represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1). Burns is proceeding in forma pauperis in this case, so

he is eligible for consideration under § 1915(e)(1). The plain
language of the statute technically does not allow the court to
appoint — i.e., compel – an attorney to represent the indigent over
the attorney’s objection; it simply allows the Court to ask an
attorney to represent the indigent pro bono publico. Mallard v.
U.S.D. for S. D. Iowa, 490 U.S. 296, 307 (1989). However, since
courts are generally successful in their endeavor to find a willing
attorney, there is nothing wrong, as a practical matter, with
calling it an “appointment.” Hughes v. Joliet Corr. Ctr., 931 F.2d
425, 429 (7th Cir. 1991).
In exercising its discretion to determine whether to recruit
an attorney for Burns, the court is guided by two 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 (citing
Farmer v. Haas, 990 F.2d 319, 321-22 (7th Cir. 1993)). Addressing
the first question, Burns does not assert that he has attempted to
find counsel on his own to try this case, nor does he attach
documentation establishing that he attempted to find trial counsel.
Accordingly, his efforts do not satisfy the first prong of the
Farmer test.
The second prong of the test is really a two-fold inquiry.
Pruitt, 503 F.3d at 655. The Court must consider the related

2

questions of the difficulty of the plaintiff's claims and the
plaintiff's competence to litigate those claims himself. Id. The
court begins with the difficulty of the plaintiff’s case. “[T]here
are no hard and fast rules for evaluating the factual and legal
difficulty of the plaintiff's claims.” Id.
The decision to appoint counsel is within the sound discretion
of district courts, Hossman v. Blunk, 784 F.2d 793, 797 (7th Cir.
1986), and counsel is not generally appointed “unless denial would
result

in

fundamental

unfairness,

impinging

on

due

process.”

LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967). Courts
“recruit lawyers for the parties only when the cases are colorable,
the facts may be difficult to assemble, and the law is complex.”
DiAngelo v. Illinois Dep’t of Public Aid, 891 F.2d 1260, 1262 (7th
Cir. 1989). The court should reserve its power to appoint counsel
in those cases “presenting exceptional circumstances as determined
by an evaluation of both the likelihood of success on the merits
and the ability of the petitioner to articulate his claims pro se
in light of the
complexity of the legal issues involved.” Farmer, 990 F.2d at 322
(quotation marks and citations omitted). Thus, a court may deny
counsel in a relatively simple case in which a pro se litigant can
adequately handle the discovery process and the trial. Lovelace v.
Dall, 820 F.2d 223 (7th Cir. 1987). Although a good lawyer may do
better than the average person, that is not the test. If it was,

3

district courts “would be required to request counsel for every
indigent litigant.” Farmer, 990 F.2d at 323.
Mr. Burns’s case does not involve “exceptional circumstances”
and is not complicated. Burns alleges one claim that he has been
fed food on unclean food trays while he has been incarcerated at
the Lake County jail and one claim that jail officials have
knowingly served him food to which he is allergic. Burns is aware
of the facts of his case as they are within his personal experience
and, to date, he has articulated his claims quite plainly and has
diligently proceeded with the case.
Burns asserts that he is unfamiliar with the conduct of a
trial. But after the Court determines whether the trial will be a
bench trial or a jury trial, it will explain the trial mechanics to
the Plaintiff.
In his submission in support of his motion for appointment of
counsel, Burns states “I don’t want a bench trial without a[n]
attorney to represent me. I want a JURY trial!” (DE 52) (Emphasis
in original). This request comes late in the day, but the Seventh
Circuit has held that where a prisoner plaintiff is proceeding pro
se:
In the absence of strong and compelling reasons to the
contrary, untimely jury demands should be granted. The
exercise of discretion requires an analysis of the facts
of the particular case. As one commentator has noted, the
court ought to approach each application under Rule 39(b)
with an open mind and an eye to the factual situation in
that particular case. The mere fact, however, that
plaintiff's motion for a jury trial was “too late” is
4

neither a strong nor a compelling reason to deny the
fundamental right to a jury trial.
Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir. 1983) (citations
and quotation marks omitted).
Subsequently, in reviewing a case in which a district court
denied a pro se prisoner’s late request for a jury trial, the
Seventh Circuit reversed, noting that the “district judge did not
identify any ‘strong and compelling’ reasons why a jury trial would
be inappropriate.” Members v. Paige, 140 F.3d 699, 703 (7th Cir.
1998). The Seventh Circuit further stated that:
Rule 38(d) means that the district judge may require a
litigant who asks belatedly for a jury trial to offer a
reason for not meeting the deadline in Rule 38(b). Once
such a reason has been advanced, the district court ought
to approach each application under Rule 39(b) with an
open mind and an eye to the factual situation of that
particular case, rather than with a fixed policy.
Id. at 703-704 (citation and quotation marks omitted).
For the foregoing reasons, the Court:
(1) DENIES the Plaintiff’s motion for appointment of
counsel (DE 51);
(2) Takes the Plaintiff’s request for a jury trial (DE 52)
under advisement;
(3) AFFORDS the Plaintiff until May 30, 2013, within which
to offer a reason for not meeting the deadline in Rule 38(b); and

5

(4) AFFORDS the Defendants until June 7, 2013, within which
to advise the Court of any strong and compelling reasons why the
Plaintiff’s untimely jury demand should not be granted.
DATED: May 14, 2012

/S/RUDY LOZANO, Judge
United States District Court

6