United States District Court, S.D. Illinois
August 9, 2005.
DAMEON DALEY, Petitioner,
RANDY J. DAVIS, Respondent.
The opinion of the court was delivered by: DONALD WILKERSON, Magistrate Judge
This matter is before the Court on the Motion for Discovery
filed by the petitioner, Dameon Daley, on January 4, 2005 (Doc.
2) and the Motion to Appoint Counsel filed by Daley on July 15,
2005 (Doc. 19). For the reasons set forth below, the Motion for
Discovery is DENIED WITHOUT PREJUDICE and the Motion to Appoint
Counsel is DENIED WITHOUT PREJUDICE.
As indicated in this Court's Report and Recommendation, the
discovery that the petitioner seeks is for a claim regarding the
sufficiency of the evidence that is not properly before this
Court. As such, the Court will not compel the respondent to
provide the transcripts and other material that the petitioner
requests at this point in the litigation. After the District
Court rules on the Report and Recommendation, and if the order
permits, this Court may reconsider the petitioner's request for
In addition, as this Court has Recommended that the District
Court dismiss his petition, appointing Counsel also would be
futile. But, again, this Court may reconsider this motion after
the District Court rules on the Report and Recommendation.
However, the plaintiff is instructed that 28 U.S.C. § 1915(e)(1)
provides that the Court "may request an attorney to represent any
person unable to afford counsel." However, 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 Local Rule 83.1(i), every member of
the bar of this Court shall be available for appointment to
represent an indigent.
The threshold burden the litigant must meet is to make a
reasonable attempt to secure private counsel. Gil v. Reed,
381 F.3d 649, 656 (7th Cir. 2004); 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 Court reminds the petitioner that he may
only be entitled to an attorney should this Court or the District
Court mandate an evidentiary hearing.
Therefore, after the District Court's ruling on the Report and
Recommendation, and after the petitioner has made an effort to
secure counsel (by providing documentation that he has contacted at least three attorneys who have declined to represent
him), Daley may re-file this motion if appropriate.
For the foregoing reasons, the Motion for Discovery filed by
Daley, on January 4, 2005 is DENIED WITHOUT PREJUDICE (Doc. 2)
and the Motion to Appoint Counsel filed by Daley on July 15, 2005
is DENIED WITHOUT PREJUDICE (Doc. 19).
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