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JOHNSON v. ROUSTIO
June 13, 2005.
KEVIN D. JOHNSON, Plaintiff,
RICK ROUSTIO and DR. CUNEO, 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 paintiff, Kevin D. Johnson on January 7,
2005 (Doc. 8). The motion is DENIED WITHOUT PREJUDICE
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
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 that he has attempted to secure counsel. The
plaintiff may re-file this 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.
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