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Olive v. Cowan

February 18, 2009


The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge


Currently pending before the Court are Plaintiff Anthony Olive's Motion to Appoint Counsel (Doc. 70) and Motions to Compel (Docs. 71 and 84). For the reasons set forth below, these motions are DENIED.


On March 3, 2008, Olive filed a motion for appointment of counsel (Doc. 70) asking that the Court appoint him an attorney in the action. Olive argues that his lawsuit contains complex legal and factual issues that he is too unskilled to litigate successfully. Olive previously sought appointment of counsel in the action (Doc. 22). At that time the Court denied without prejudice his request because he had not shown that he had attempted to retain counsel on his own. In response, Olive filed a motion for reconsideration of the denial of the motion to appoint counsel (Doc. 27), attached to which he provided evidence that he had attempted but had been unable to retain counsel on his own. The Court reviewed his request again, and found that even though he had met the first prong of the Court's inquiry, appointment of counsel was not warranted because the issues in the action are not so complex that Plaintiff would not be able to adequately prepare his case without counsel (Doc. 28).

A district court "may request an attorney to represent any person unable to afford counsel."

28 U.S.C. § 1915(e)(1). There is no constitutional or statutory right to counsel for a civil litigant, however. 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). Appointment of counsel lies within the sound discretion of the trial court. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (citing Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006)).

In determining whether to appoint counsel, the Court is directed to make a two-fold inquiry: "(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?" Pruitt, 503 F.3d at 654 (citing Farmer v. Haas, 990 F.2d 319, 321-22 (7th Cir. 1993)). The first prong of the analysis is a threshold question. If a plaintiff has made no attempt to obtain counsel on his own, the court should deny the request. See Pruitt, 503 F.3d at 655.

The second prong of the analysis requires the court to assess both the complexity of the plaintiff's claims and the ability of the plaintiff to litigate the claims on his own. Id. The Seventh Circuit has recognized that these two concerns "are necessarily intertwined." Id. Thus, "the question is whether the difficulty of the case--factually and legally--exceeds the particular plaintiff's capacity as a layperson to coherently present it to the judge or jury himself." Id.

The issues in this case are not complex. After the Court's threshold determination, only two counts remain: a claim of unconstitutional conditions of confinement based upon an unsanitary cell, and a state law claim for mental and emotional distress brought about by the cell conditions. The case also does not exceed Olive's capacity to present his case. Olive has filed numerous detailed and coherent motions in the action that indicate Plaintiff was able to successfully participate in the discovery process. In addition, less than one month after this motion was filed, Defendants moved for summary judgment in the case (Doc. 77). Plaintiff properly responded to this motion with evidence as required under Fed. R. Civ. P. 56 (Doc. 80). The Court finds that Olive is capable of presenting and litigating the issues in this action on his own. Thus, the Motion to Appoint Counsel (Doc. 70) is DENIED without prejudice. The Court informs Plaintiff that if his claims survive summary judgment he may again seek appointment of counsel to assist him at trial.


On March 3, 2008, Plaintiff filed a Motion to Compel Discovery (Doc. 71). In this motion, Plaintiff objects to the responses given by Defendants to his requests for production and interrogatories. He identifies five objections: A) that Defendants have failed to make a reasonable inquiry to find the answer or document; B) that Defendants have insufficiently demonstrated a basis for their objections to production requests as burdensome; C) that Plaintiff's requests are not overly broad; D) that Defendants answers to interrogatories and document requests are intentionally elusive, incomplete, inaccurate, and evasive; and E) that the information or documents sought are relevant to the case. Plaintiff then lists each interrogatory and production request to which Plaintiff believes Defendants improperly responded, and annotates the interrogatory or production request with the corresponding objection paragraph listed above that applies. In other words, he identifies the interrogatory or production request, then states the letter that corresponds to his objection thereto. In total, Plaintiff objects to 53 of the Defendants' responses.

The Federal Rules require that interrogatories be answered by the party to whom they are directed. Fed. R. Civ. P. 33(b)(1)(A). The party must answer each interrogatory, to the extent it is not objected to. Fed. R. Civ. P. 33(b)(3). "The grounds for objecting to an interrogatory must be stated with specificity." Fed. R. Civ. P. 33(b)(4). Regarding the requests for production, Fed. R. Civ. P. 34(a)(1) requires only that the responding party provide documents "in the responding party's possession, custody, or control." A responding party is required to respond to each request for production or state an objection to the request. Fed. R. Civ. P. 34(b)(2)(B).

The Court will not address each of the 53 interrogatories and production requests individually. The Court notes, however, that Plaintiff objects to a number of relevance objections regarding a claim that was dismissed from the action after the Court's initial screening under 28 U.S.C. ยง1915A. Plaintiff has not sufficiently demonstrated how documents and questions regarding the dismissed claim are relevant to this action, that is, he has not shown how these documents are reasonably calculated to lead to the discovery of admissible evidence. See Fed. R. Civ. P. 26(b)(1). Objections for relevance are not improper. Having reviewed the interrogatories and requests for production at issue, the Court finds that Defendants either ...

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