JOHNSON v. DEFENSE FINANCE AND ACCOUNTING SERVICE et al

Filing 6

ORDER - Mr. Johnson's motion to proceed in forma pauperis, dkt. #2 , is GRANTED to the extent that he is assessed a partial initial filing fee of $66.16. His motion for appointment of counsel, dkt. #3 is DENIED without prejudice. He shall have until October 14, 2022, to pay the initial partial filing fee and file an amended complaint. Failure to take either action may result in dismissal of this case. The clerk is directed to include a copy of the form motion for assistance with recruiting counsel with Mr. Johnson's copy of this order. (SEE ORDER.) Copy sent to plaintiff via US mail. Signed by Judge James Patrick Hanlon on 9/16/2022. (Attachments: #1 Blank Motion for Assistance Recruiting Counsel Form) (TPS)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HENRY JOHNSON,
Plaintiff,
v.
DEFENSE FINANCE AND ACCOUNTING
SERVICE,
JOHN T. VOTAW,
Defendants.

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No. 1:22-cv-01481-JPH-MG

ORDER
Henry Johnson, an inmate at the Northern Nevada Correctional Center,
filed this case on July 21, 2022, alleging that the Defense Finance Accounting
Service and its Deputy Director of Operations, John Vatow, allowed employees
to fraudulently deposit Mr. Johnson's monthly military benefit checks into an
account he did not authorize between March 2017 and February 2020 and that
this conduct amounted to exploitation of an older/vulnerable person. See dkt.
1. Then, on August 15, 2022, Mr. Johnson filed another case based on the
same underlying facts but relating to deposits made between November 2014
and July 2016. See Case No. 1:22-cv-1619-JPH-MG. That case was originally
assigned to Judge Richard Young but was transferred to this Court because it
is a related to this case. S.D. Ind. L.R. 40-1(e).
This order resolves pending motions filed in this case, 1:22-cv-1481-JPHMG, and outlines steps Mr. Johnson must take in pursuing his case.

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I. Motion to proceed in forma pauperis
Henry Johnson's motion to proceed in forma pauperis, dkt. [2], is
GRANTED to the extent that he is assessed an initial partial filing fee of
$66.16. See 28 U.S.C. § 1915(b)(1). He shall have through September 30,
2022 to pay this initial partial filing fee to the clerk of the district court.
Mr. Johnson is informed that after the initial partial filing fee is paid, he
will be obligated to make monthly payments of 20 percent of the preceding
month’s income each month that the amount in his account exceeds $10.00,
until the full filing fee of $350.00 is paid. 28 U.S.C. § 1915(b)(2). After the
initial partial filing fee is received, a collection order will be issued to Johnson
and to his custodian, and the Court will screen the complaint under 28 U.S.C.
§ 1915A.
II. Motion to appoint counsel
Mr. Johnson's motion for appointment of counsel, dkt. [3], is DENIED
without prejudice. "Litigants in federal civil cases do not have a constitutional
or statutory right to court-appointed counsel." Walker v. Price, 900 F.3d 933,
938 (7th Cir. 2018). Instead, a litigant who is unable to afford counsel "may
ask the court to recruit a volunteer attorney to provide pro bono
representation." Id. (citing 28 U.S.C. § 1915(e)(1)). "Two questions guide a
court's discretionary decision whether to recruit counsel: (1) 'has the indigent
plaintiff made a reasonable attempt to obtain counsel or been effectively
precluded from doing so,' and (2) 'given the difficulty of the case, does the
plaintiff appear competent to litigate it himself?'" Id. (quoting Pruitt v. Mote, 503
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F.3d 647, 654 (7th Cir. 2007) (en banc)). The first inquiry—whether an
indigent litigant reasonably attempted to get a lawyer—"is a mandatory,
threshold inquiry that must be determined before moving to the second
inquiry." Eagan v. Dempsey, 987 F.3d 667, 682 (7th Cir. 2021).
For the first question, while the motion explains Mr. Johnson cannot
afford to retain counsel, dkt. 3 at 2, it does not explain any efforts he has taken
to recruit pro bono counsel. Therefore, he should make some attempts to
recruit counsel on his own. Cf. Romanelli v. Suliene, 615 F.3d 847, 851 (7th
Cir. 2010) (affirming district court's requirement that litigant contact at least
three attorneys to show reasonable effort).
For the second question, the Court considers whether the case's
complexity "exceeds [the plaintiff's] capacity as a layperson to coherently
present it to the judge or jury himself." Olson v. Morgan, 750 F.3d 708, 712
(7th Cir. 2014) (quoting Pruitt, 503 F.3d at 655). Mr. Johnson's motion
explains that he has limited legal knowledge and that he suffers from advanced
Parkinson's disease, which affects his memory. Dkt. 3 at 4. While the Court is
sensitive to Mr. Johnson's health issues, his filings thus far have been detailed
and coherent. Moreover, since this case is in the earliest stage of litigation,
"the district court faces the difficulty of accurately evaluating the need for
counsel." Rosas v. Advocate Christ Med. Ctr., 803 F. App'x 952, 954 (7th Cir.
2020) (citation omitted); see Romanelli, 615 F.3d at 852 (finding that "any
accurate determination regarding [a litigant's] abilities or outcomes of the
lawsuit" to be "impossible" when a case is "still in its infancy").
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As a result, his motion for assistance in recruiting counsel is DENIED
without prejudice. Dkt. [3]. If Mr. Johnson would like to renew his motion at
a later stage in the proceedings, he should do so using the Court's form motion
which the clerk will include with his copy of this order.
III. Amended Complaint
Mr. Johnson currently has two cases pending before this Judge that are
brought against the same defendants and allege the same underlying
"fraudulent deposits" but cover different time periods. Mr. Johnson has also
filed a motion to proceed in forma pauperis, dkt. 2, and a motion for
appointment of counsel, dkt. 3, in the other case, 1:22-cv-1619-JPH-MG.
To avoid duplication of Mr. Johnson's and the Court's efforts, Mr.
Johnson shall have until October 14, 2022, to file an amended complaint in
this case, 1:22-cv-1481-JPH-MG, that covers the entire period in which he
believes the fraudulent activity occurred. The amended complaint must
include the case number, 1:22-cv-1481-JPH-MG, and "Amended Complaint" on
the first page. Because an amended complaint completely replaces previous
pleadings, it must be a complete statement of Mr. Johnson's claims. See Beal
v. Beller, 847 F.3d 897, 901 (7th Cir. 2017) ("For pleading purposes, once an
amended complaint is filed, the original complaint drops out of the picture.").
IV. Conclusion
For the reasons above, Mr. Johnson's motion to proceed in forma
pauperis, dkt. [2], is GRANTED to the extent that he is assessed a partial
initial filing fee of $66.16. His motion for appointment of counsel, dkt. [3] is
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DENIED without prejudice. He shall have until October 14, 2022, to pay
the initial partial filing fee and file an amended complaint as described above.
Failure to take either action may result in dismissal of this case. After Mr.
Johnson has paid his initial partial filing fee and filed his amended complaint,
the Court will screen the amended complaint under 28 U.S.C. § 1915A.
The clerk is directed to include a copy of the form motion for assistance
with recruiting counsel with Mr. Johnson's copy of this order.
SO ORDERED.
Date: 9/16/2022

Distribution:
HENRY JOHNSON
1107758
Nevada Correctional Center
PO BOX 7000
CARSON CITY, NV

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