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Perkins v. Wexford Health Sources

June 25, 2009


The opinion of the court was delivered by: Reagan, District Judge


A. Introduction and Background

On October 19, 2005, Plaintiff Darron R. Perkins filed a four count civil rights action, alleging that the Defendants were deliberately indifferent to his serious medical needs by withholding his medication, which is needed to treat his post-traumatic stress disorder.*fn1 Currently before the Court are Perkins's appeals from Magistrate Judge Proud's most recent denials of his motions to appoint counsel and to alter the trial schedule (Docs. 92 & 96).

Before turning to Perkins's instant appeals, the Court notes that it has ruled on these issues numerous times. On September 4, 2007, Perkins filed a motion to appoint counsel (Doc. 19) and a motion to stay discovery until counsel could be appointed (Doc. 20). Magistrate Judge Clifford Proud denied the motion to appoint counsel on January 4, 2008 (Doc. 30), stating that the facts and issues in the case are not so complex that Perkins could not proceed pro se and Perkins had not demonstrated he had made reasonable attempts to obtain counsel. Consequently, Judge Proud also denied the motion to stay discovery as moot, but granted Perkins's motion for a time extension to respond to certain discovery requests (Doc. 31).*fn2

On January 11, 2008, Perkins timely filed objections to Judge Proud's Orders denying the appointment of counsel and denying the motion to stay discovery (Doc. 34). On April 17, 2008, the undersigned District Judge affirmed the Magistrate Judge's Orders (Doc. 35). On October, 28, 2008, Magistrate Judge Clifford Proud Ordered that discovery was to conclude on January 16, 2009 (Doc. 47).

On December 19, 2008, Perkins filed yet another motion to amend the trial schedule (Doc. 49). On the same date, Perkins filed a new motion for appointment of counsel, through which he attempted to challenge the constitutionality of 42 U.S.C. § 1997e(d)(Doc. 50). Specifically, Perkins argued the statute was a violation of his entitlement to Equal Protection and Due Process. While that motion was pending, Perkins filed another motion to reopen discovery for this case (Doc. 74). Defendants opposed the motion to reopen discovery (Doc. 75) and filed timely motions for summary judgment (Docs. 67 & 71). On April 24, 2009, Magistrate Judge Proud denied Perkins's motions to amend the pretrial schedule and to reopen discovery (Doc. 74), stating that the parties had already conducted a year and a half worth of discovery and that any further delay would amount to an injustice as to the Defendants (Doc. 79). Additionally, on April 27, 2009, Magistrate Judge Clifford J. Proud also denied Perkins's request for counsel, finding that "the facts and issues in this case are not so complex that plaintiff cannot adequately complete the pretrial phase without the assistance of counsel" (Doc. 80).

Perkins has timely filed appeals from the Magistrate Judge's Orders denying his motion to alter the trial schedule (Doc. 92) and denying his motion for counsel (Doc. 96). Having fully reviewed the parties' findings, the Court hereby AFFIRMS the Magistrate Judge's rulings (Docs. 79 & 80).

B. Analysis

FEDERAL RULE OF CIVIL PROCEDURE 72(a) provides that where a party objects to the Magistrate Judge's ruling on a non-dispositive pre-trial matter, "the district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law."

1. Appointment of Counsel

The Court finds that Magistrate Judge Proud's refusal to appoint counsel was not clearly erroneous or contrary to law. As Perkins has been informed, pro se litigants have no constitutional or statutory right to be represented by Court appointed counsel, and the Court has no obligation to appoint counsel for pro se litigants. Jackson v. County of McLean, 953 F. 2d 1070, 1072 (7th Cir. 1992) (quoting McNeil v. Lowney, 831F.2d 1368 (7th Cir. 1987)). However, 28 U.S.C. § 1915(e)(1) permits the Court, in its discretion, to appoint counsel, when a litigant cannot afford to hire counsel. The Court will appoint counsel in a few select cases where an attorney seems particularly appropriate or important.

Where the litigant cannot afford counsel, the Seventh Circuit has indicated that the Court should make a threshold inquiry into whether the movant has made unsuccessful attempts to obtain counsel. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). Where the Court is satisfied that the movant either made reasonable attempts to obtain counsel, or that circumstances precluded him from doing so, the Court should ask, "[G]iven the difficulty of the case, does the plaintiff appear competent to litigate it himself?" Id. at 654. The Seventh Circuit has noted that these "inquiries are necessarily intertwined; the difficulty of the case is considered against the plaintiff's litigation capabilities, and those capabilities are examined in light of the challenges specific to the case at hand." Id. at 655.

In determining the level of difficulty involved in the case, the Court should consider whether the factual and legal difficulty of the case "exceeds the particular plaintiff's capacity as a layperson to coherently present it to the judge or jury himself." Id. In determining the plaintiff's competency, the Court may consider any relevant evidence available, including (but not limited to) the plaintiff's literacy, education level, communication skills, prior litigation experience, psychological history, and intellectual capacity. Id. The Court may inform its decision by considering the pleadings, communications from, and any contact with the plaintiff. Id. As the Seventh Circuit has explained,

The question is whether the plaintiff appears competent to litigate his own claims given their degree of difficulty, and this includes the tasks that normally attend litigation: evidence gathering, preparing and ...

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