UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CYNTHIA M. HERNDON )

)

Plaintiff, )

)

v. ) No. 3:15 CV 96

)

INDIANA DEPARMENT OF CHILD )

SERVICES and DEBRA BANGHART, )

)

Defendants. )

OPINION and ORDER 

Cynthia Herndon, a pro se plaintiff, filed a complaint under 42 U.S.C. § 1983

against the Indiana Department of Child Services and Debra Banghart. (DE # 6.) She

asserts that defendants wrongfully filed a suit in Indiana state court to terminate her

relationship with her minor son. (Id. at 3.) Plaintiff also filed two motions requesting

appointed counsel. (DE ## 8, 12.) Before the court ruled on these motions, plaintiff filed

a “Motion to Reconsider” regarding her earlier requests for appointed counsel. (DE

# 21.) Shortly thereafter, plaintiff filed an “Amended Motion to Reconsider.” (DE # 25.)

The amended motion contained as an exhibit, a letter from Indiana Legal Services

declining representation but was otherwise identical to the first motion to reconsider.

On October 6, 2015, Magistrate Judge John E. Martin issued an order denying without

prejudice the first two motions for appointed counsel and the first motion to reconsider.

(DE # 26.) The order did not address the amended motion to reconsider. 

On October 22, 2015, plaintiff filed a motion seeking the substitution of the

Magistrate Judge and, alternatively, a change of venue. (DE # 27.) The court denied the
motion in part as to the substitution of the Magistrate Judge and change of venue. (DE

# 29.) However, the court construed the remainder of the motion as a Federal Rule of

Civil Procedure 72(a) objection to the Magistrate Judge’s order denying plaintiff’s

motions for appointment of counsel and a motion to reconsider. (Id.) The court set a

briefing schedule for the parties to respond to the objection. (Id. at 2.)

Defendants timely filed their response on December 21, 2015. (DE # 31.) Plaintiff,

apparently under the impression that defendants’ response was not timely, filed a

motion the next day seeking relief akin to a default judgment on the matter of

appointed counsel. (DE # 32.) Plaintiff then, consistent with the original briefing

schedule, filed a written reply which she titled as a “Motion for Court Appointed

Counsel.” (DE # 33.) Plaintiff’s reply documents her ongoing, unsuccessful efforts to

obtain legal counsel and includes a list of attorneys that she has attempted to retain. (Id.

at 3.) 

Section 636 of the Federal Magistrates Act and Federal Rule of Civil Procedure

72(a) govern district court review of a magistrate judge’s order on a nondispositive

matter. Domanus v. Lewicki, 742 F.3d 290, 296 (7th Cir. 2014). According to Rule 72(a), the

district judge “must consider timely objections and modify or set aside any part if the

order that is clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). The district

judge reviews magistrate decisions for clear error. Domanus, 742 F.3d at 295. The clear

error standard “means that the district court can overturn the magistrate judge’s ruling

only if the district court is left with the definite and firm conviction that a mistake has

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been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 936, 943 (7th Cir. 1997). This is

an extremely deferential standard and the district court will not disturb the magistrate

judge’s decision simply because it might have decided the issue differently. Pinkston v.

Madry, 440 F. 3d 879, 888 (7th Cir. 2006). Using this standard the court now turns to the

merits of plaintiff’s objection to the Magistrate Judge Martin’s order.

There is no constitutional or statutory right to counsel in a federal civil case.

Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993). Nevertheless, pursuant to 28 U.S.C.

1915(e)(1), the court may request an attorney to represent any person unable to afford

counsel. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). This decision is within

the discretion of the district court and is shaped by two inquiries: (1) whether the

indigent litigant has made a reasonable attempt to retain counsel or has been effectively

precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff

appear competent to litigate it by herself. Id. at 654-55 (citing Farmer, 990 F.2d at 322);

Bracey v. Grondin, 712 F.3d 10112, 1016 (7th Cir. 2013) (“to qualify [for appointment of

counsel], the indigent litigant must make reasonable efforts at finding counsel himself.

If the litigant comes up short, then the district court must decide whether given the

difficulty of the case, the plaintiff is competent to try it himself”) (internal quotation

marks omitted). There are no fixed criteria for assessing a plaintiff’s competence to

litigate her own case, but the court should take into consideration the plaintiff’s

“literacy, communication skills, educational level and litigation experience.” Pruitt, 503

F.3d at 655. 

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The first inquiry is a threshold question which the court should ask before

deciding a § 1915(e)(1) motion to appoint counsel. Id. In evaluating this first question,

Magistrate Judge Martin noted that, “[w]hile [p]laintiff has demonstrated some attempt

to secure counsel on her own without success, there is no indication that she has

contacted any individual attorneys in an attempt to obtain representation nor that she is

unable to do so.” (DE # 26 at 2.) In the record before the Magistrate Judge, the evidence

of plaintiff’s search for representation was limited to two requests to legal services

organizations. (DE # 12.) In the absence of documentation of a more exhaustive effort,

the Magistrate Judge could rightly conclude that plaintiff had not satisfied the threshold

question of Pruitt, and for this reason alone, could properly deny the plaintiff’s

motions.1

Plaintiff’s motions also fall short under the second prong of Pruitt, and therefore,

the Magistrate Judge’s order is not clearly erroneous. In finding that plaintiff was

capable of representing herself, Magistrate Judge Martin noted: 

[p]laintiff, who has some college education, has set forth a relatively simple

claim of civil rights violation that does not involve a complex set of facts or

intricate legal issues. She is familiar with the facts of the case, as they are

1

In the time since the Magistrate Judge’s order was filed, plaintiff has apparently

made an earnest effort to find representation. In her reply, she lists a total of eleven

attorneys and organizations that she has contacted for representation. (DE # 33 at 3.)

While her recent effort is notable, it has no bearing on the court’s analysis of her

objection to the Magistrate Judge’s order. At this stage, the district court can only

consider the evidence that was before the Magistrate Judge as he made his ruling. To

consider new evidence at this stage would “essentially be conducting impermissible de

novo review of the order.” SmithKlein Beecham Corp. v. Apotex Corp., 2000 WL 1310669, *3

(N.D. Ill. Sept. 13, 2000). 

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within her own personal experience. She has so far articulated her claims in

this case, and is litigating at least two other cases in this district on her own

behalf.

(DE # 26 at 2-3.) The Magistrate Judge also concluded that there is nothing in the record

to suggest that complex discovery or expert testimony would be required to resolve the

matter. (Id. at 3.) The Magistrate Judge identified relevant factors and conducted a

thorough assessment of both the complexity of the case and plaintiff’s competency to

litigate this case on her own behalf. Bearing in mind the clear error standard of review,

there is nothing in the record to produce “a definite and firm conviction that a mistake

has been committed.” Pinkston, 440 F.3d at 888 (quoting Anderson v. City of Bessemer, 470

U.S. 564, 573 (1985)). 

Accordingly, plaintiff’s Rule 72(a) objection is OVERRULED and the remainder

of her motion (DE # 27) is DENIED. Plaintiff’s “Motion for Defendants Failure to

Respond. . .” (DE # 32) is also DENIED. The court STRIKES plaintiff’s Amended

Motion to Reconsider (DE # 25) as duplicative of her first motion to reconsider.

SO ORDERED.

Date: January 14, 2016

s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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