Wheeler v. Doe

Background

Damon Wheeler requested a volunteer lawyer to represent him at trial. The court had previously granted his request to proceed without paying filing fees, so it found that he qualified as unable to afford counsel. Wheeler’s claims arose from an alleged September 6, 2014 arrest. Earlier rulings dismissed his claims against the other defendants, leaving Joseph Kolek as the remaining defendant. The court had granted in part and denied in part Kolek’s motion for summary judgment, and Wheeler’s claims concerning an alleged warrantless entry into his residence and an alleged strip search and visual cavity body inspection survived for trial.

Legal standard

Under the federal statute governing people who cannot afford court costs, a court may ask a lawyer to represent a civil litigant, but it cannot require a lawyer to take the case or provide public funds to pay the lawyer. The court applied factors including whether the claims appeared likely to have substance, the litigant’s ability to investigate and present the case, the likely need for cross-examination, the complexity of the legal issues, and whether counsel would help produce a fair result.

Ruling

The court found that Wheeler’s claims were likely to have substance. It also found that the need to prepare filings for the upcoming jury trial, conduct cross-examination, and address complex legal issues favored representation. The court therefore directed the Clerk to seek pro bono counsel for Wheeler for trial, with permission for that counsel also to participate in settlement discussions if a lawyer volunteered. The court emphasized that no lawyer was guaranteed to accept the case and that Wheeler might have to proceed without counsel. It requested that the Clerk terminate the pending motion and send Wheeler a copy of the order. The court also certified that an appeal from the order would not be taken in good faith and denied fee-waiver status for purposes of such an appeal.