UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

BRET S. BEILER, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:12-CV-02

)

MICHAEL E. KREPS and )

BRAD MILLER, )

)

Defendants. )

OPINION AND ORDER

I. INTRODUCTION

Pro se Plaintiff Bret Beiler seeks appointment of counsel in this excessive force action

brought under 42 U.S.C. § 1983. (See Docket # 15.). The Court requested that Beiler submit a

Questionnaire for Appointment of Counsel (Docket # 27), which he did (Docket # 32). The

issue was then considered at the initial scheduling conference on June 25, 2012, where Beiler

supplemented his request, and was further taken under advisement. (See Docket # 36.) For the

reasons given below, Beiler’s request will be DENIED.

II. LEGAL STANDARD

No constitutional or statutory right to counsel exists in a civil case. Pruitt v. Mote, 503

F.3d 647, 656-57 (7th Cir. 2007) (citing Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th

Cir. 1992)); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997); Zarnes v. Rhodes, 64 F.3d 285,

288 (7th Cir. 1995). Under 28 U.S.C. § 1915(e)(1), however, a court may request that an

attorney represent an indigent litigant; the decision whether to recruit pro bono counsel is left to

the discretion of the district court. Pruitt, 503 F.3d at 649; Luttrell, 129 F.3d at 936; Zarnes, 64

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F.3d at 288. “When confronted with a request under § 1915(e)(1) for pro bono counsel, the

district court is to make the following inquiries: (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?”1 Pruitt, 503

F.3d at 654-55; see also Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010). 

The second prong of this test comes down to a two-fold inquiry that must address “both

the difficulty of the plaintiff’s claims and the plaintiff’s competence to litigate those claims

himself.” Pruitt, 503 F.3d at 654-55; see also Santiago, 599 F.3d at 761. 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 and jury himself.” Pruitt, 503 F.3d

at 654-55; see also Santiago, 599 F.3d at 761. Stated another way, the district court must

ascertain “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 responding to motions and other court filings, and trial.” Pruitt, 503 F.3d at 654-

55 (emphasis omitted). 

Normally, determining a plaintiff’s competence will be assessed by considering “the

plaintiff’s literacy, communication skills, educational level, and litigation experience.” Id; see

also Santiago, 599 F.3d at 762. And if the record reveals the plaintiff’s intellectual capacity and

psychological history, these too would be relevant. Pruitt, 503 F.3d at 654-55; see also

Santiago, 599 F.3d at 762. Overall, the decision to recruit counsel is a “practical one, made in

1 Here, Beiler has made a reasonable attempt to obtain counsel on his own, as he has apparently contacted

five different attorneys; none, however, have taken his case. Of course, this is an indication that his claims may

indeed have little merit and that appointing counsel will not make a difference in the case’s ultimate outcome. See 

Jackson, 953 F.2d at 1073 (considering plaintiff’s unsuccessful attempts to retain counsel when denying his motion

to appoint counsel). 

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light of whatever relevant evidence is available on the question.” Pruitt, 503 F.3d at 654-55; see

also Santiago, 599 F.3d at 762.

III. DISCUSSION

Applying the foregoing two-fold inquiry, it is evident that Beiler is competent to

represent himself in this case. To explain, the suit is a relatively straightforward § 1983 action. 

Beiler primarily claims that the police officers used excessive force when they pulled him out of

his vehicle and used a taser on him multiple times while arresting him for public intoxication. 

(See Docket # 15.) Therefore, the first factor—the difficulty of his claims—cuts against Beiler’s

request for counsel. See generally Lovelace v. Dall, 820 F.2d 223, 226-27 (7th Cir. 1987)

(denying a motion to appoint counsel where pro se plaintiff could adequately handle the

discovery process and trial in a relatively simple § 1983 case).

Second, Beiler has already adequately articulated his claims in this case, filing a

comprehensive Amended Complaint (Docket # 15) that evinces a thorough knowledge of the

case and familiarity with the facts. Moreover, he read and approved a comprehensive Report of

Parties’ Planning Meeting and competently participated in the scheduling conference. And

Beiler has litigation experience as he represented himself for a year in the criminal case that

arose from his arrest, including his sentencing hearing. Additionally, because the facts of this

case are within Beiler’s particular knowledge—stemming primarily from his active participation

in his criminal case—the task of discovery is apt to be quite limited and certainly something

Beiler is capable of doing. Nevertheless, to assist him, copies of the applicable Federal Rules of

Civil Procedure concerning discovery (which he indicates he has read) are enclosed with this

Order.

Furthermore, the Court has observed through Beiler’s telephonic court appearance and

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filings that he is articulate and has reasonably good communication skills, at least at a sufficient

level to proceed pro se. He is not presently incarcerated and thus has the unfettered ability to

perform his own research. And because he is unemployed, he has adequate time to perform such

research. As a result, the second factor of the two-fold inquiry—the plaintiff’s competence to

litigate the claims himself—also fails to support his request for counsel. 

Considering the foregoing, Beiler appears quite competent to adequately handle the

litigation of this relatively simple § 1983 case. Consequently, his request that the Court recruit

counsel for him will be denied.

IV. CONCLUSION

For the reasons stated herein, Plaintiff’s request for appointment of counsel (contained in

Docket # 15) is DENIED. Plaintiff is, of course, free to attempt to secure counsel on his own. 

The Clerk is directed to send a copy of Federal Rules of Civil Procedure 26 through 37 and 45 to

the Plaintiff along with a copy of this Order.

SO ORDERED.

Enter for this 26th day of June, 2012.

/S/ Roger B. Cosbey 

Roger B. Cosbey,

United States Magistrate Judge

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