United States District Court, S.D. Illinois
June 9, 2005.
CHRISTOPHER B. TAYLOR, Plaintiff,
DAVID HAYES, et al., Defendants.
The opinion of the court was delivered by: DONALD G. WILKERSON, Magistrate Judge
This matter is before the Court on the Motion for Appointment
of Counsel filed by the plaintiff, Christopher B. Taylor, on
September 27, 2004, the Motion to Proceed filed by Taylor on
January 4, 2005, the Second Motion for Appointment of Counsel
filed by Taylor on February 1, 2005, the Motion to Order Service
of Process and Subpoenas as Needed filed by Taylor on April 21,
2005, and the Third Motion for Appointment of Counsel filed by
Taylor on June 6, 2005. The Motion for Appointment of Counsel is
DENIED WITHOUT PREJUDICE (Doc. 3), the Motion to Proceed is
DENIED AS MOOT (Doc. 9), the Second Motion for Appointment of
Counsel is DENIED AS MOOT (Doc. 10), the Motion to Order
Service of Process is DENIED (Doc. 13), and the Third Motion
for Appointment of Counsel is DENIED AS MOOT (Doc. 16).
With respect to the plaintiff's motions for appointment of
counsel, there is no constitutional or statutory right to counsel
for a civil litigant. Stroe v. Immigration and Naturalization
Services, 256 F.3d 498, 500 (7th Cir. 2001); Zarnes v.
Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). In Heidelberg v.
Hammer, 577 F. 2d 429 (7th Cir. 1978), the Court recognized
that the question of whether or not to request an attorney to
represent a plaintiff rests in the sound discretion of the
district court "unless denial would result in fundamental
unfairness impinging on due process rights." 577 F.2d at 431; See also
Gil v. Reed, 381 F.3d 649, 656-657 (7th Cir. 2004);
28 U.S.C. § 1915(e)(1). The Court may only request counsel to
represent an indigent if the likelihood of success is more than
just doubtful. Miller v. Pleasure, 296 F.2d 283, 284 (2nd
Cir. 1961). Under Special Order No. 13, Order Amending Local
Rule 1(f), as promulgated by the United States District Court
for the Southern District of Illinois, every member of the bar of
this Court shall be available for appointment to represent an
The threshold burden the litigant must meet is to make a
reasonable attempt to secure private counsel. Zarnes,
64 F.3d at 288. After meeting the threshold burden, there are five
factors that a district court should consider in ruling on a
request to appoint counsel. Those factors are (1) whether the
merits of the claim are colorable; (2) the ability of the
indigent to investigate crucial facts; (3) whether the nature of
the evidence indicates that the truth will more likely be exposed
where both sides are represented by counsel; (4) capability of
the indigent person to present the case; and (5) the complexity
of the legal issues raised by the complaint. See Merritt v.
Faulkner, 697 F.2d 761, 764 (7th Cir. 1983); McKeever v.
Israel, 689 F.2d 1315 (7th Cir. 1982); Maclin v. Freake,
650 F.2d 885,887-889 (7th Cir. 1981).
The plaintiff has failed to meet the threshold burden as there
is no showing in any of these motions that he has attempted to
secure counsel. The plaintiff may re-file his motion for
appointment of counsel provided that he make some showing, by
attaching letters and/or affidavits, that he has tried to contact
at least three (3) attorneys to represent him in this matter and
that they have declined to represent him. The plaintiff should
also address the five factors listed above in any subsequent
motion for appointment of counsel.
With respect to the remaining two motions, the plaintiff first
seeks the necessary forms to effect service. These forms already have been mailed to the
plaintiff on May 23, 2005. Secondly, the plaintiff seeks for this
case to "proceed" as he has already paid the initial filing fee.
This matter is proceeding and this motion is unnecessary.
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