Eric J. Mapes, Plaintiff-Appellant,
State of Indiana, et al., Defendants-Appellees.
Submitted June 28, 2019
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:19-cv-00691-JMS-TAB - Jane Magnus-Stinson, Chief Judge.
Flaum, Sykes, and Hamilton, Circuit Judges.
Mapes was arrested for trespassing after being refused
service at a CVS store. He sued the State of Indiana, CVS,
and a number of individual defendants asserting a long list
of grievances under federal and state law. Mapes asked the
district court to recruit counsel for him. The district judge
denied that request, dismissed Mapes's complaint without
prejudice for failure to state a claim, and suggested several
amendments to the complaint. Mapes did not heed that advice
and now appeals the judge's refusal to recruit counsel.
We affirm. The judge did not abuse her discretion when she
denied his request for pro bono counsel, provided an
opportunity to amend, and offered instructions on how best to
do so without a lawyer.
early stage, we accept the allegations in Mapes's
complaint as true. See Perez v. Fenoglio, 792 F.3d
768, 774 (7th Cir. 2015). On January 21, 2019, CVS employees
refused to issue Mapes a MoneyGram money transfer, leading to
a verbal conflict. The store manager contacted the police,
who arrested Mapes for trespassing. They took Mapes to the
Marion County jail, where guards assaulted him and medical
staff ignored his physical disabilities.
three weeks later, Mapes sued the State of Indiana, CVS, and
others for violating what he calls "the law they are
required to [uphold] when dealing with disabled people,"
including the Americans with Disabilities Act
("ADA"), among other claims. He simultaneously
moved for the appointment of counsel. See 28 U.S.C.
§ 1915(e)(1) ("The court may request an attorney to
represent any person unable to afford counsel."). Mapes
asserted the need for pro bono representation based on his
poor hearing, social anxiety, a speech disorder, and an
unidentified mental disability.
judge screened and dismissed the complaint without prejudice
for failure to state a claim, see id. §
1915(e)(2), and advised Mapes on how to amend it. The judge
informed Mapes that his amended complaint "should set
forth what happened during the incident and the facts that
support his belief that CVS refused to serve him because of
his disability." She explained that Mapes should
identify the people who harmed him and describe how they did
so. Finally, she told Mapes to bring unrelated claims in
separate lawsuits. The judge's order gave Mapes until
March 22 to file an amended complaint. Failure to do so would
"result in the dismissal of [his suit] without further
notice or opportunity to show cause."
same order, the judge denied Mapes's request for
appointed counsel. Relying on Kadamovas v. Stevens,
706 F.3d 843 (7th Cir. 2013), she described the request as
"premature." Mapes hadn't yet filed a
"viable complaint." And because the defendants had
not yet responded to the complaint, or even been served with
process, the judge could not reliably assess Mapes's need
for an attorney. Mapes could renew his motion after filing an
amended pleading. Rather than attempt to follow the
judge's amendment instructions, Mapes appealed.
a word on our jurisdiction: An order dismissing a suit
without prejudice ordinarily is not final and thus not
appealable unless it effectively ends the litigation.
See 28 U.S.C. § 1291; Mostly Memories, Inc.
v. For Your Ease Only, Inc., 526 F.3d 1093, 1097 (7th
Cir. 2008). When a district judge dismisses a suit but
provides an opportunity and a deadline to cure deficiencies,
the conditional order becomes final after the deadline
passes. Shott v. Katz, 829 F.3d 494, 496 (7th Cir.
2016). Mapes did not file an amended complaint before the
court-imposed deadline, so we have jurisdiction.
argues that the judge violated the ADA by denying his request
for counsel. The ADA and relevant regulations require public
entities, including courts, to make "reasonable
modifications" to avoid disability-based discrimination.
See 42 U.S.C. § 12132; 28 C.F.R. §
35.130(b)(7); Tennessee v. Lane, 541 U.S. 509,
531-34 (2004). But § 1915(e)(1)-not the ADA-governs a
court's discretion to recruit counsel for a pro se
litigant. We've explained that a district judge
confronted with a motion for pro bono counsel must assess (1)
whether "the indigent plaintiff made a reasonable
attempt to obtain counsel or [had] been effectively precluded
from doing so; and if so, (2) given the difficulty of the
case, [whether] the plaintiff appear[s] competent to litigate
it himself." Pruitt v. Mote, 503 F.3d 647, 654
(7th Cir. 2007) (en banc) (citing Farmer v. Haas,
990 F.2d 319, 321-22 (7th Cir. 1993)). This standard takes
account of mental or physical capabilities that may affect a
plaintiff's ability to litigate. See id. at
judge did not abuse her discretion when she denied
Mapes's request for counsel and advised him on how to
file an amended complaint. "The inquiry into the
plaintiff's capacity to handle his own case is a
practical one, made in light of whatever relevant evidence is
available on the question." Id. at 655. Mapes
demonstrated that he was physically able to file a complaint
and mentally able to recall the events of January 21, 2019.
The judge was not "required to offer [Mapes] legal
guidance on whether and how to amend [his] pleadings/'
Kiebala v. Boris,928 F.3d 680, 684 (7th Cir. 2019),
and under these circumstances, denying Mapes's request
for counsel and advising him on how to cure his
complaint's deficiencies was entirely reasonable. If for
any reason Mapes could not comply with the judge's
pleading instructions, he ...