*

After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2). 

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 17, 2006*

Decided February 21, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 05-3118

CLARENCE M. EASTERLING,

Plaintiff-Appellant,

v.

NICOLE KOPP and ALBERT

GONZALES,

Defendants-Appellees.

Appeal from the United States 

District Court for the Eastern 

District of Wisconsin

No. 04-C-615

William C. Griesbach, 

Judge.

ORDER

Clarence Easterling sued under 42 U.S.C. § 1983 claiming that Nicole Kopp

and Albert Gonzales, police officers in Kenosha, Wisconsin, violated his Fourth

Amendment rights by searching his apartment without a warrant. Kopp and

Gonzales suspected Easterling of stealing frozen pizzas from a convenience store and

had tracked him to his apartment a short time after the April 2001 theft. The

officers admit that they entered the apartment that Easterling and several other

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
05-3118 Page 2

men shared, and that they searched the living room and kitchen and confiscated

several frozen pizzas from the freezer (theft charges were brought but later dropped

when Easterling pleaded guilty to other, unrelated crimes). In moving for summary

judgment, however, the officers submitted an affidavit from Kopp stating that one of

Easterling's roommates, David Scheuer, gave permission to enter and look around

the apartment. The officers also submitted an affidavit by Scheuer stating that he

let the police into the apartment and gave permission to look around. The district

court granted summary judgment in favor of Kopp and Gonzales. 

On appeal Easterling argues that the district court erroneously failed to enlist

counsel to assist him, and that this error resulted in his suit being dismissed at

summary judgment. Easterling explains that his presentation was hampered by the

purported complexity of the consent issue and his lack of experience in civil

litigation. He also says that, because a "no-contact" order prevented him from

communicating with Scheuer, he needed counsel to interview Scheuer and ascertain

whether Scheuer in fact had given the officers permission to enter and search the

apartment. 

The officers reply that the latter contention—whether offered as a reason why

counsel was necessary or as an independent argument—is forfeited because

Easterling failed to raise it in the district court. We agree. Contentions made for

the first time on appeal are forfeited. Harper v. Vigilant Ins. Co., 433 F.3d 521, 528

(7th Cir. 2005); Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th

Cir. 2004). Although Easterling included in his complaint a one-sentence request for

appointment of counsel, he never mentioned the no-contact order (which as far as we

can tell, was imposed as a condition of post-imprisonment supervision that he has

not yet commenced) or informed the district court that he was unable to contact

Scheuer directly. In fact, he did not give the court any explanation at all for

requesting counsel. Nor did he alert the court by way of Fed. R. Civ. P. 56(f) that he

would be unable to oppose the officers' motion for summary judgment unless he was

given an opportunity to interview Scheuer. See Kaufman v. McCaughtry, 419 F.3d

678, 686 (7th Cir. 2005); Serpico v. Laborers' Int'l Union of N. Am., 97 F.3d 995, 998

(7th Cir. 1996). 

In any case, the district court did not abuse its discretion in deciding not to

seek counsel for Easterling. Litigants requesting that counsel be recruited must

show as a threshold matter that they made a reasonable attempt to secure private

counsel. Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004); Zarnes v. Rhodes, 64 F.3d

285, 288 (7th Cir. 1995); Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th

Cir. 1992); see also 28 U.S.C. § 1915(e)(1). Easterling did not even suggest to the

district court that he attempted to secure private counsel, nor did he explain why he

failed to do so. Moreover the difficulty and complexity of a case is an important

factor in determining whether counsel is necessary. See Gil, 381 F.3d at 656. The
05-3118 Page 3

district court considered this factor and correctly concluded that Easterling's case

was not complex; either Scheur gave the officers permission to enter and search the

apartment or he did not. 

Easterling also argues that the district court erred in awarding costs to the

City of Kenosha, which was never a party to the litigation. We cannot review this

argument because Easterling did not appeal the order of costs. A notice of appeal

from a judgment on the merits is not effective with respect to a later-issued award of

costs. See Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 468–69 (7th Cir. 1999);

United States v. Dennis, 902 F.2d 591, 592–93 (7th Cir. 1990); Wieglos v.

Commonwealth Edison Co., 892 F.2d 509, 511 (7th Cir. 1989). In this case costs

were awarded after Easterling filed his notice of appeal from the final judgment on

the merits. He never filed a second notice of appeal or amended the original to

include the order of costs. As a result, the propriety of awarding costs to Kenosha is

beyond the scope of this appeal. 

AFFIRMED.