STROMINGER v. INDIANA DEPT. OF CORRECTIONS et al

Filing 73

ORDER denying Plaintiff's 51 Motion to Appoint Counsel. 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. Despite Strominger's insistence to the contrary, the Court finds he is competent to litigate the claims in this case. **SEE ORDER** Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 10/22/2014. (AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

RAYMOND STROMINGER,
Plaintiff,
vs.
INDIANA DEPT. OF CORRECTIONS,

Defendant.

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Case No. 2:13-cv-291-JMS-WGH

Entry Discussing Recruitment of Counsel
This matter is before the court on the Plaintiff’s Motion to Appoint Counsel filed March
28, 2014 [dkt. 51]. That 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). If this Court had enough lawyers willing and qualified to accept a pro bono assignment,
it would assign a pro bono attorney in almost every pro se case. But there are not nearly enough
attorneys to do this. As a result, this Court has no choice but to limit appointment of counsel to
those cases in which it is clear under the applicable legal test that the plaintiff must have the
assistance of a lawyer.
“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 plaintiff, Raymond Strominger (“Strominger”) states that he has no legal training and
that he is not capable to presenting this case given the extremely complex claims at issue. Further,
Strominger states that he lacks adequate access to a law library because he is housed in a
segregation unit. Despite Strominger’s insistence to the contrary, the Court finds he is competent
to litigate the claims in this case.
In making this determination the Court notes the following: Strominger has effectively
pursued his rights in this civil action. His filings demonstrate an understanding of his claims, the
legal questions at issue and the Court’s procedures. For example, the amended complaint
anticipated that certain claims are barred by the statute of limitations such that he argues that the
four year statute of limitations provided by 28 U.S.C. § 1658 should be applied. In addition, the
record reflects that he is an effective advocate at the administrative level such that he was able to
obtain from the defendant all of the accommodations he seeks in this civil action. He also is an
experienced litigator. In Strominger v. Brock, 2:10-cv-158-LJM-DKL he successfully argued that
based on United States v. Georgia, 126 S.Ct. 887 (2006), the district court erred in dismissing his

claims for money damages brought pursuant to Title II of the Americans with Disabilities Act
(“ADA”) and Section 504 of the Rehabilitation. See dkts. 27 and 45 of 2:10-cv-158-LJM-DKL.
There is no indication that Strominger’s litigation skills are the result of anything other than his
own abilities.
In addition, Strominger’s concerns regarding his access to the law library are overstated.
Nearly all prisoners face limitations in terms of legal resources and such limitations do not
necessarily require the Court to recruit counsel to assist a prisoner. Strominger states that he is able
to request case law by providing the law library with citations to particular opinions. Given the
fact that the defendant’s motion for summary judgment is pending there are ample cases cited by
defendants which Strominger can request to inform himself of the law at issue. In addition, the
cases cited by the defendant will almost certainly provide additional citations to relevant
information in the body of the opinion.
Finally, the issue raised in the motion for summary judgment is not particularly complex.
The only remaining claim for consideration is brought under the Rehabilitation Act. Specifically,
Strominger alleges that the IDOC has discriminated against him by denying him the opportunity
to participate in the Action, Consequences, and Treatment (“ACT”) program because he is
confined to a wheelchair. In other words he alleges he has been kept out of the program because
of his disability. The IDOC seeks summary judgment on the remaining claim. See dkt. 56. The
IDOC explains that it is entitled to judgment in its favor because the IDOC admitted Strominger
into the ACT which began in February 2014. Strominger was notified that the IDOC was working
to admit him into the next class prior to the filing of his initial complaint. The IDOC argues that
Strominger’s participation in the ACT program rules out any need for injunctive relief and there
is no basis to conclude that Strominger is entitled to money damages. In other words, the IDOC

asserts that, unless Strominger is able to introduce admissible evidence to contest the facts that (a)
he was told that he would be admitted into the ACT program or (b) was admitted into the ACT
program, Claim I can be decided as matter of law. See Morris v. Kingston, 368 Fed. Appx, 686,
689-90 (7th Cir. 2010) (stating that bureaucratic negligence in accommodating a prisoner is not
sufficient to state a claim for intentional discrimination, a prerequisite for damages). Given
Strominger’s demonstrated abilities and the difficulty of the remaining claim, Strominger is
competent to litigate it himself
Based on the foregoing, therefore, the plaintiff’s motion for appointment of counsel [dkt.
51] is DENIED.
IT IS SO ORDERED.

October 22, 2014
Date: __________________

Distribution:

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

RAYMOND STROMINGER
160814-B701
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
All Electronically Registered Counsel