United States District Court, N.D. Illinois
April 27, 2004.
VIRGIE PORTER, Plaintiff,
ALLSTATE INSURANCE COMPANY, Defendant
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Plaintiff Virgie Porter, proceeding pro se, has filed a complaint
against Allstate Insurance Company ("Allstate"). Plaintiff petitions for
leave to file in forma pauperis and requests appointment of counsel. For
the reasons explained below, the application to proceed in forma
pauperis is granted, and the motion for appointment of counsel is denied.
I. In Forma Pauperis
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to
ensure that indigent litigants have meaningful access to the courts. See
Neitzke v. Williams, 490 U.S. 319, 324 (1989). However, to prevent abuse
of the broad access permitted by the statute, § 1915(e) provides that
"the court shall dismiss the case" if it finds that the allegation of
poverty is untrue or if it determines that the action is (1) frivolous or
malicious; (2) fails to state a claim on which relief may be granted; or
(3) seeks damages from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2), As for the "failure to state a claim" factor, we
will apply the familiar Rule 12(b)(6) criterion that dismissal is in
order if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations. Because
Porter is proceeding pro se, we have a special responsibility to construe
her complaint liberally. See Donald v. Cook County Sheriff's Dep't,
95 F.3d 548, 555 (7th Cir. 1996).
Porter states in her financial affidavit that she is unemployed and has
no source of income except unspecified loans from family and friends. She
also states that she does not have more than $200 in cash or in bank
accounts. Given this information, it appears that Porter is unable to pay
the necessary filing fees.
The Civil Cover Sheet filed with Porter's complaint indicates that this
is a federal question suit, but plaintiff does not cite the federal
statute under which she is filing this action. The complaint contains two
counts against Allstate in relation to plaintiff's property insurance.
Count I states "Discriminated by sex. Male customer with same similar
[sic] property, pol. coverage was treated better than me. Believe to have
been treated badly worse than that of male customer." (Complaint at 3.)
This count fails to state a claim because plaintiff does not specify
exactly how she was allegedly "treated badly" by Allstate. If it is in relation to the insurance rates she was charged, that is covered by Count
II, which alleges "price goughing [sic]. I, female customer, was
retaliated against, because I am female comparing male customer."
(Complaint at 3.) Construing the complaint liberally, Count II states a
claim for violation of the Fair Housing Act, which prohibits
discrimination "in the provision of services or facilities in connection"
with the sale or rental of housing and activities that "make unavailable
or deny" housing "because of . . . sex." 42 U.S.C. § 3604(a),(b).*fn1
Because it appears that plaintiff cannot pay the required filing fees
and because the complaint states a claim in Count II, we grant
plaintiff's application to proceed in forma pauperis. Count I, however, is
dismissed for failure to state a claim because plaintiff does not specify
the exact allegedly discriminatory actions of the defendant. If plaintiff
wishes, we will consider granting her leave to file an amended complaint
to cure the defects in Count I, but only after the defendant has been
served and counsel has entered an appearance on behalf of defendant. II. Appointment of Counsel
Civil litigants have no constitutional or statutory right to be
represented by counsel in federal court. See McKeever v. Israel,
689 F.2d 1315 (7th Cir. 1982). District courts may, in their discretion,
appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). In evaluating a
litigant's request for counsel, there is a threshold requirement that the
indigent make a reasonable effort to secure counsel before presenting a
request for appointment, Jackson v. County of McLean, 953 F.2d 1070, 1072
(7th Cir. 1992).*fn2 The Seventh Circuit has phrased the issue in terms
of a single question: Given the difficulty of the case, does the
plaintiff appear competent to try the case himself, and if not, would
appointment of counsel make any difference to the outcome? See Farmer v.
Haas, 990 F.2d 319, 322 (7th Cir. 1993).
At this stage of the proceedings, when defendant has not yet had an
opportunity to respond to the complaint, we cannot say that the
appointment of counsel at this time would aid plaintiff's cause.
Plaintiff's motion for appointment of counsel is therefore denied without
prejudice to reconsideration should it become apparent that the assistance
of an attorney is necessary. CONCLUSION
For the reasons stated above, plaintiff's application to proceed in
forma pauperis is granted. Plaintiff's motion for appointment of counsel
is denied without prejudice.
Count I of the complaint is dismissed without prejudice.