MILLER V. MARBERRY ET AL.
Filing
51
ORDER - denying 37 Motion to Appoint Counsel. (See Order.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 11/13/2012. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
WILLIAM ALLEN MILLER,
Plaintiff,
v.
H.J. MARBERRY, WARDEN, ET. AL.,
Defendants.
)
)
)
)
)
)
)
)
2:11-cv-262-JMS-DKL
ORDER
This matter is before the Court on the Plaintiff’s Motion to Appoint Counsel filed August
17, 2012 [dkt. 37]. The motion has been considered. Pursuant to 28 U.S.C. § 1915(e)(1), courts
are empowered only to “request” counsel. Mallard v. United States District Court, 490 U.S. 296,
300 (1989). “When confronted with a request . . . for pro bono counsel, the district court is to
make the following 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 v. Mote, 503 F.3d 647,
654-655 (7th Cir. 2007). The Court must deny “out of hand” a request for counsel made without
a showing of such effort. Farmer v. Haas, 990 F.2d 319 (7th Cir.), cert. denied, 114 S. Ct. 438
(1993). The plaintiff asserts that he has been unsuccessful in recruiting representation on his
own. Although the Court concludes, based on the above filing, that the plaintiff has made a
reasonable effort to secure representation, he should continue his own effort.
The Court proceeds to the second inquiry required in these circumstances. The Court’s
task in this second inquiry is to analyze the plaintiff’s abilities as related to “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. Accordingly, the question is not whether an
attorney would help the plaintiff’s case, but whether, given the difficulty of the case, the plaintiff
seems competent to litigate it himself. Id. at 653-655.
The Court will not make an outright request that counsel represent the plaintiff at this
time. The issues raised in the motion to dismiss and in the alternative motion for summary
judgment are not complex. In addition, based on the plaintiff’s comprehensible filings, his use of
the Court’s processes, his familiarity with the factual circumstances surrounding his attempts to
exhaust his administrative remedies and his legal claims, the plaintiff is competent to litigate on
his own.
The Court will, however, be alert to the possibility of recruiting representation for the
plaintiff at trial or at other points in the case where the plaintiffs incarceration and pro se status
would make it particularly difficult for him to proceed without representation and to the
possibility at those points where the assistance of counsel would be a benefit of both the plaintiff
and the Court in the presentation of the case.
Based on the foregoing, therefore, the plaintiff’s motion for appointment of counsel [dkt.
37] is DENIED.
IT IS SO ORDERED.
11/13/2012
Date: __________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Copies via ECF only:
Jeffrey L. Hunter
UNITED STATES ATTORNEY'S OFFICE
jeff.hunter@usdoj.gov
Copy via U.S. Mail:
WILLIAM ALLEN MILLER
77436-012
ALLENWOOD - USP
ALLENWOOD U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 3000
WHITE DEER, PA 17887
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?