Baines v. Walgreen Co

Filing 5

DECISION AND ORDER signed by Judge Lynn Adelman on 3/16/15 granting 2 Motion for Leave to Proceed in forma pauperis; denying without prejudice 3 Motion to Appoint Counsel. Further ordering the U.S. Marshals Service to serve a copy of the complaint, a waiver of service form and/or the summons, and this order upon defendants. (cc: via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

REGINA GWYNN BAINES,
Plaintiff,
v.

Case No. 15-CV-0258

WALGREENS,
Defendant.

DECISION AND ORDER
Plaintiff Regina Baines has filed an action against defendant Walgreens. Plaintiff
asserts that defendant retaliated against her by failing to rehire her because she previously
filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). Ordinarily,
a plaintiff must pay a filing fee of $400 to bring an action in federal court, which includes
the $350 statutory filing fee and a $50 administrative fee. 28 U.S.C. § 1914(a). However,
plaintiff has requested leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915.
Section 1915 is meant to ensure indigent litigants meaningful access to the federal
courts, Nietzke v. Williams, 490 U.S. 319, 324 (1989), and applies to both nonprisoner
plaintiffs and to plaintiffs who are incarcerated, Floyd v. United States Postal Serv., 105
F.3d 274, 275-77 (6th Cir. 1997) (“[T]he only logical interpretation of the statute is that nonprisoners have the option to proceed in forma pauperis under § 1915(a).”). Here, the
heightened requirements of the Prison Litigation Reform Act do not apply. See West v.
Macht, 986 F. Supp. 1141, (W.D. Wis. 1997). Under § 1915, an indigent party may
commence a federal court action, without paying required costs and fees, upon submission
of an affidavit asserting inability “to pay such fees or give security therefor” and stating “the

nature of the action, defense or appeal and the affiant’s belief that the person is entitled
to redress.” 28 U.S.C. § 1915(a)(1).
Plaintiff has filed the required affidavits of indigence. Upon review of those affidavits,
I am satisfied that plaintiff meets the poverty requirements of 28 U.S.C. § 1915. Plaintiff
supports herself and two children, her monthly expenses are almost as much as her
income, and she states that she was homeless until recently. Additionally, plaintiff has
stated the nature of her claim and asserted her belief that she is entitled to redress. Thus,
I will grant her leave to proceed in forma pauperis.
Plaintiff also moves for appointment of counsel. Although civil litigants do not have
a constitutional or statutory right to counsel, this court has the discretion to request
attorneys to represent indigents in appropriate cases pursuant to 28 U.S.C. § 1915(e)(1).
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); Ray v. Wexford Health Sources, Inc.,
706 F.3d 864, 866–67 (7th Cir. 2013). When confronted with a request for counsel, a
district court must make the following inquiries: (1) has the indigent party made a
reasonable attempt to obtain counsel or been effectively precluded from doing so, and (2)
given the difficulty of the case, does the indigent party appear competent to litigate it
himself? Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). With regard to the
second inquiry, the court must examine “whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 781 F.3d at 696 (citing Pruitt, 503 F.3d at 655). This inquiry focuses not only on
the plaintiff’s ability to try his case, but also includes other “tasks that normally attend
litigation” such as “evidence gathering” and “preparing and responding to motions.” Id.

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Here, plaintiff’s efforts to obtain legal counsel on her own have been unsuccessful.
Nonetheless, the issues in this case appear at this stage to be straightforward and
uncomplicated; plaintiff’s case appears to involve a fairly straightforward claim of
employment discrimination. Further, plaintiff's filings indicate that she is capable of litigating
this case on her own. Accordingly, I will deny plaintiff's request for appointment of counsel
without prejudice. If this case proceeds to trial, plaintiff may refile this motion.
THEREFORE, IT IS ORDERED that plaintiff’s motion to appoint counsel (ECF NO.
3) is DENIED WITHOUT PREJUDICE.
NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion to proceed
in forma pauperis (ECF No. 2) is GRANTED.
IT IS ADDITIONALLY ORDERED, pursuant to Fed. R. Civ. P. 4(c)(3), that the U.S.
Marshals Service shall serve a copy of the complaint, a waiver of service form and/or the
summons, and this order upon defendants. Plaintiff is advised that Congress requires the
U.S. Marshal’s Service to charge for making or attempting such service. 28 U.S.C.
§ 1921(b). The current fee for waiver-of-service packages is $8 per item. 28 C.F.R.
§§ 0.114(a)(2). Although Congress requires the court to order service by the U.S. Marshals
Service precisely because in forma pauperis plaintiffs are indigent, it has not made any
provision for these fees to be waived either by the court or by the U.S. Marshals Service.
Plaintiff, however, should provide defendant or its counsel with copies of all future
motions or papers filed by the plaintiff in this action.

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Dated at Milwaukee, Wisconsin this 16th day of March, 2015.

s/ Lynn Adelman
_____________________________
LYNN ADELMAN
District Judge

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