UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MARK A. COTTON, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:14-cv-189

)

JOHN KAUFFMAN, et al., )

)

Defendants. )

OPINION AND ORDER

On March 12, 2015, pro se Plaintiff Mark A. Cotton filed a motion in this 42 U.S.C. §

1983 case advancing false arrest claims under the Fourth Amendment, asking that this Court

request an attorney to represent him. (Docket # 25.) Because Cotton is competent to litigate this

case himself, his motion will be DENIED.

LEGAL STANDARD

“There is no right to court-appointed counsel in federal civil litigation.” Olson v.

Morgan, 750 F.3d 708, 711 (7th Cir. 2014) (citing Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir.

2007)). But under 28 U.S.C. § 1915(e)(1), 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. Olson, 750 F.3d at 711; Pruitt, 503 F.3d at 658. 

“In deciding whether to request counsel, district courts must ask two questions: ‘(1) [H]as

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?’” Olson, 750 F.3d at 711 (alteration in original) (quoting Pruitt, 503 F.3d at

654). The second portion of this inquiry, stated another way, 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.” Id. at 712 (quoting Pruitt, 503 F.3d at 655). In

conducting this inquiry, 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 655 (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. And

if the record reveals the plaintiff’s intellectual capacity and psychological history, these too

would be relevant. Id. Overall, the decision to recruit counsel is a “practical one, made in light

of whatever relevant evidence is available on the question.” Id.

ANALYSIS

 To begin, there is no evidence that Cotton has contacted any attorneys concerning his

case. Therefore, he fails to satisfy the threshold requirement concerning a request for

recruitment of counsel. See Jackson v. Cnty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992) (“If

. . . the indigent has made no reasonable attempts to secure counsel (unless circumstances

prevented him from doing so), the court should deny any § 1915(d) motions outright.”); see also

Romanelli v. Suliene, 615 F.3d 847, 851-52 (7th Cir. 2010). 

But even if he had satisfied this threshold requirement, it is evident that Cotton is

competent to represent himself in this matter. This suit is a relatively straightforward § 1983

action: Cotton claims that Defendants violated his Fourth Amendment right to be free from false

arrest when they executed a warrant and arrested him on or about November 2013 for battery,

resisting arrest, and possession of marijuana. (Docket # 1, 3.) Accordingly, the first factor–the

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difficulty of his claims–cuts against his request for counsel. See 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).

 Furthermore, Cotton has already articulated his claims in this suit (Docket # 1);

conferred regarding a Report of Parties’ Planning Meeting (Docket # 22); participated in a Rule

16 Preliminary Pretrial Conference (Docket # 23, 27); and sought relief through filing a motion

seeking an extension of time and a default (Docket # 17, 19) and the instant motion for counsel

(Docket # 25). His motion seeking an extension of time and a default incorporated several

citations to various trial rules, indicating that he has already performed at least some legal

research and is capable of articulating his legal position. (Docket # 17.) 

Moreover, it is evident from his filings and participation in two telephonic conferences

(Docket # 23, 27) that Cotton has reasonably good communication skills, at least at a sufficient

level to proceed pro se. Cf. Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. July 25, 2014)

(reversing a district court’s denial of request for counsel pertaining to “a blind and indigent

prisoner with a tenth-grade education and no legal experience” in a case involving complicated

medical matters); Henderson v. Ghosh, 755 F.3d 559, 567 (7th Cir. 2014) (reversing a district

court’s denial of request for counsel where the record reflected plaintiff’s low IQ, functional

illiteracy, and poor education). He is not presently incarcerated and thus has the freedom to

perform his own research. Finally, many of the facts of this case are within his particular

knowledge; therefore, the task of discovery is apt to be quite limited. 

Considering the foregoing, Cotton appears competent to adequately handle the litigation

of this § 1983 case. Consequently, his motion asking that the Court request counsel for him will

be denied. If his case survives the filing of dispositive motions and proceeds to trial, the Court

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will reconsider recruiting counsel for him.

CONCLUSION

For the reasons stated herein, Plaintiff’s Motion for Appointment of Counsel (Docket #

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

 Enter for this 25th day of March 2015.

S/Susan Collins 

Susan Collins,

United States Magistrate Judge

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