Ware v. Brann

Background

Walter Ware, proceeding without a lawyer, applied for the court to request pro bono counsel. Pro bono counsel means a volunteer attorney who represents a person without charging that person. Ware had previously been allowed to proceed without paying court fees, and he stated that his financial circumstances had not changed. The court therefore treated him as indigent, meaning unable to afford counsel.

Ware asserted a claim under 42 U.S.C. § 1983, a federal law that allows claims for violations of constitutional rights by state actors. He alleged unconstitutional conditions of confinement because the spacing between prisoners was less than six feet during the COVID-19 pandemic. He alleged emotional distress but did not allege that he contracted COVID-19. The court also stated that the challenged conditions no longer applied.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request—but cannot require or directly appoint—a volunteer attorney for a person who cannot afford counsel. Courts must consider whether the claim appears likely to have substance before considering additional factors, such as the person’s ability to investigate facts, present the case, handle legal issues, and obtain a fair result without counsel.

Ruling

The court found that Ware’s claim did not appear likely to have substance. Because that threshold requirement was not met, the court did not consider the additional factors. The court denied Ware’s Application for the Court to Request Counsel. Judge Robert W. Lehrburger also certified that any appeal from the order would not be taken in good faith and denied Ware fee-free status for purposes of an appeal.