Herndon v. DCS

Filing 34

OPINION AND ORDER re 27 MOTION (Emergence) and Petition: Motion-Petition to Substitute None - Residing Judge on Matters of Denial by Plaintiff Cynthia M Herndon. Plaintiff's Rule 72(a) objection is OVERRULED and the remainder of the 27 Moti on is DENIED; DENYING 32 MOTION for Defendants Failure to Respond to Plaintiff's Motion on Appointment of Counsel Previously Presented to the Court by Plaintiff Cynthia M Herndon; STRIKING 25 MOTION (Amended) for Reconsideration re 21 MOTION for Reconsideration re 12 MOTION to Appoint Counsel by Plaintiff Cynthia M Herndon. Signed by Senior Judge James T Moody on 1/14/16. (cc: Cynthia M Herndon). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CYNTHIA M. HERNDON

)
)
Plaintiff,
)
)
v.
)
)
INDIANA DEPARMENT OF CHILD )
SERVICES and DEBRA BANGHART, )
)
Defendants.
)

No. 3:15 CV 96

OPINION and ORDER
Cynthia Herndon, a pro se plaintiff, filed a complaint under 42 U.S.C. § 1983
against the Indiana Department of Child Services and Debra Banghart. (DE # 6.) She
asserts that defendants wrongfully filed a suit in Indiana state court to terminate her
relationship with her minor son. (Id. at 3.) Plaintiff also filed two motions requesting
appointed counsel. (DE ## 8, 12.) Before the court ruled on these motions, plaintiff filed
a “Motion to Reconsider” regarding her earlier requests for appointed counsel. (DE
# 21.) Shortly thereafter, plaintiff filed an “Amended Motion to Reconsider.” (DE # 25.)
The amended motion contained as an exhibit, a letter from Indiana Legal Services
declining representation but was otherwise identical to the first motion to reconsider.
On October 6, 2015, Magistrate Judge John E. Martin issued an order denying without
prejudice the first two motions for appointed counsel and the first motion to reconsider.
(DE # 26.) The order did not address the amended motion to reconsider.
On October 22, 2015, plaintiff filed a motion seeking the substitution of the
Magistrate Judge and, alternatively, a change of venue. (DE # 27.) The court denied the

motion in part as to the substitution of the Magistrate Judge and change of venue. (DE
# 29.) However, the court construed the remainder of the motion as a Federal Rule of
Civil Procedure 72(a) objection to the Magistrate Judge’s order denying plaintiff’s
motions for appointment of counsel and a motion to reconsider. (Id.) The court set a
briefing schedule for the parties to respond to the objection. (Id. at 2.)
Defendants timely filed their response on December 21, 2015. (DE # 31.) Plaintiff,
apparently under the impression that defendants’ response was not timely, filed a
motion the next day seeking relief akin to a default judgment on the matter of
appointed counsel. (DE # 32.) Plaintiff then, consistent with the original briefing
schedule, filed a written reply which she titled as a “Motion for Court Appointed
Counsel.” (DE # 33.) Plaintiff’s reply documents her ongoing, unsuccessful efforts to
obtain legal counsel and includes a list of attorneys that she has attempted to retain. (Id.
at 3.)
Section 636 of the Federal Magistrates Act and Federal Rule of Civil Procedure
72(a) govern district court review of a magistrate judge’s order on a nondispositive
matter. Domanus v. Lewicki, 742 F.3d 290, 296 (7th Cir. 2014). According to Rule 72(a), the
district judge “must consider timely objections and modify or set aside any part if the
order that is clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). The district
judge reviews magistrate decisions for clear error. Domanus, 742 F.3d at 295. The clear
error standard “means that the district court can overturn the magistrate judge’s ruling
only if the district court is left with the definite and firm conviction that a mistake has

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been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 936, 943 (7th Cir. 1997). This is
an extremely deferential standard and the district court will not disturb the magistrate
judge’s decision simply because it might have decided the issue differently. Pinkston v.
Madry, 440 F. 3d 879, 888 (7th Cir. 2006). Using this standard the court now turns to the
merits of plaintiff’s objection to the Magistrate Judge Martin’s order.
There is no constitutional or statutory right to counsel in a federal civil case.
Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993). Nevertheless, pursuant to 28 U.S.C.
1915(e)(1), the court may request an attorney to represent any person unable to afford
counsel. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). This decision is within
the discretion of the district court and is shaped by two inquiries: (1) whether the
indigent litigant has made a reasonable attempt to retain counsel or has been effectively
precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it by herself. Id. at 654-55 (citing Farmer, 990 F.2d at 322);
Bracey v. Grondin, 712 F.3d 10112, 1016 (7th Cir. 2013) (“to qualify [for appointment of
counsel], the indigent litigant must make reasonable efforts at finding counsel himself.
If the litigant comes up short, then the district court must decide whether given the
difficulty of the case, the plaintiff is competent to try it himself”) (internal quotation
marks omitted). There are no fixed criteria for assessing a plaintiff’s competence to
litigate her own case, but the court should take into consideration the plaintiff’s
“literacy, communication skills, educational level and litigation experience.” Pruitt, 503
F.3d at 655.

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The first inquiry is a threshold question which the court should ask before
deciding a § 1915(e)(1) motion to appoint counsel. Id. In evaluating this first question,
Magistrate Judge Martin noted that, “[w]hile [p]laintiff has demonstrated some attempt
to secure counsel on her own without success, there is no indication that she has
contacted any individual attorneys in an attempt to obtain representation nor that she is
unable to do so.” (DE # 26 at 2.) In the record before the Magistrate Judge, the evidence
of plaintiff’s search for representation was limited to two requests to legal services
organizations. (DE # 12.) In the absence of documentation of a more exhaustive effort,
the Magistrate Judge could rightly conclude that plaintiff had not satisfied the threshold
question of Pruitt, and for this reason alone, could properly deny the plaintiff’s
motions.1
Plaintiff’s motions also fall short under the second prong of Pruitt, and therefore,
the Magistrate Judge’s order is not clearly erroneous. In finding that plaintiff was
capable of representing herself, Magistrate Judge Martin noted:
[p]laintiff, who has some college education, has set forth a relatively simple
claim of civil rights violation that does not involve a complex set of facts or
intricate legal issues. She is familiar with the facts of the case, as they are

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In the time since the Magistrate Judge’s order was filed, plaintiff has apparently
made an earnest effort to find representation. In her reply, she lists a total of eleven
attorneys and organizations that she has contacted for representation. (DE # 33 at 3.)
While her recent effort is notable, it has no bearing on the court’s analysis of her
objection to the Magistrate Judge’s order. At this stage, the district court can only
consider the evidence that was before the Magistrate Judge as he made his ruling. To
consider new evidence at this stage would “essentially be conducting impermissible de
novo review of the order.” SmithKlein Beecham Corp. v. Apotex Corp., 2000 WL 1310669, *3
(N.D. Ill. Sept. 13, 2000).
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within her own personal experience. She has so far articulated her claims in
this case, and is litigating at least two other cases in this district on her own
behalf.
(DE # 26 at 2-3.) The Magistrate Judge also concluded that there is nothing in the record
to suggest that complex discovery or expert testimony would be required to resolve the
matter. (Id. at 3.) The Magistrate Judge identified relevant factors and conducted a
thorough assessment of both the complexity of the case and plaintiff’s competency to
litigate this case on her own behalf. Bearing in mind the clear error standard of review,
there is nothing in the record to produce “a definite and firm conviction that a mistake
has been committed.” Pinkston, 440 F.3d at 888 (quoting Anderson v. City of Bessemer, 470
U.S. 564, 573 (1985)).
Accordingly, plaintiff’s Rule 72(a) objection is OVERRULED and the remainder
of her motion (DE # 27) is DENIED. Plaintiff’s “Motion for Defendants Failure to
Respond. . .” (DE # 32) is also DENIED. The court STRIKES plaintiff’s Amended
Motion to Reconsider (DE # 25) as duplicative of her first motion to reconsider.
SO ORDERED.
Date: January 14, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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