In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1384

ERIC J. MAPES,

Plaintiff-Appellant,

v.

STATE OF INDIANA, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:19-cv-00691-JMS-TAB — Jane Magnus-Stinson, Chief Judge.

____________________

SUBMITTED JUNE 28, 2019 — DECIDED AUGUST 6, 2019*

____________________

Before FLAUM, SYKES, and HAMILTON, Circuit Judges.

 

* We agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments and oral 

argument would not significantly aid the court. FED. R. APP.

P. 34(a)(2)(C).
2 No. 19-1384

PER CURIAM. Eric 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.

I. Background

At this 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.

About 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.1 He simultaneously moved for the 

 

1 The defendants were not served with process in the district court and 

are not participating in this appeal.
No. 19-1384 3

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.

The 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.”

In that 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.
4 No. 19-1384

II. Discussion

First, 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.

Mapes 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 659–60.

The judge did not abuse her discretion when she denied 

Mapes’s request for counsel and advised him on how to file 
No. 19-1384 5

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 needed to explain why and renew 

his request for appointed counsel. See Pruitt, 503 F.3d at 659. 

He did neither. And Mapes hasn’t argued on appeal that he 

was incapable of following the judge’s directions. 

One final point bears mentioning. In denying the request 

for pro bono counsel, the judge cited a passage from 

Kadamovas: “[U]ntil the defendants respond to the complaint, 

the [pro se] plaintiff’s need for assistance of counsel ... 

cannot be gauged.” 706 F.3d at 846. That language simply 

acknowledges the difficulty of accurately evaluating the 

need for counsel in the early stages of pro se litigation. 

Because “[t]he inquiry into plaintiff competence and case 

difficulty is particularized to the person and case before the 

court,” it is not susceptible to judge-made bright-line rules. 

Pruitt, 503 F.3d at 656. So it’s incorrect to read this sentence 

in Kadamovas as restricting a district judge’s discretion to 

recruit counsel for a deserving plaintiff until after the defendant has answered the complaint. While such cases may 

be unusual, a judge may recruit counsel to help a pro se 

litigant amend his complaint. See Perez, 792 F.3d at 784 
6 No. 19-1384

(explaining that “[w]here an inmate alleges an objectively 

serious medical condition, it may be better to appoint counsel—so that he or she can investigate and flesh out any claim 

that may exist—than to dismiss a potentially meritorious 

claim”).

AFFIRMED