White v. Gutwein

Background

Mike White, who was incarcerated and representing himself, brought this civil-rights action under 42 U.S.C. § 1983 against Eric Gutwein, C. Story, D. Venettozzi, and T. Griffin. White alleges that the defendants denied him procedural due process during a disciplinary proceeding and failed to protect him from an assault. The pending matter was White’s third request for the appointment of pro bono counsel, meaning a volunteer lawyer.

Legal standard

The court explained that it generally cannot require lawyers to represent people without lawyers in civil cases. Under 28 U.S.C. § 1915(e)(1), however, it may ask its pro bono panel to provide a lawyer to an indigent self-represented litigant. The court first considers whether the litigant’s position appears likely to have substance or some chance of success. If that threshold is met, the court considers additional factors, including the person’s ability to obtain a lawyer independently, the difficulty of the factual investigation and legal issues, and whether the case requires skilled cross-examination.

Court’s analysis

The court found that the action was still in its early stages because White had not yet filed his second amended complaint. It therefore could not conclude that White was unable to handle the case without assistance. The court also could not determine that White’s position showed a strong chance of success, particularly in light of its earlier order dismissing White’s amended complaint. The court found that the legal issues were not especially complex.

The court acknowledged White’s health issues but found that he had not shown that his condition prevented him from effectively prosecuting the case. The court also noted that it had recently granted White’s motion for reconsideration and several requests for more time.

Ruling and deadlines

The court denied without prejudice White’s request for appointment of pro bono counsel. White may renew the request later as the case develops. The court also directed White to file his second amended complaint no later than December 1, 2023, and stated that this was the final extension of time. The court said that failure to file by that date, without good cause, would result in dismissal with prejudice of all claims that it had previously dismissed without prejudice.

The court explained that the second amended complaint would replace the earlier complaints entirely and must include all allegations White wanted the court to consider. If White filed the second amended complaint, the remaining defendants were directed to answer or seek permission to file a motion by December 22, 2023. The clerk was directed to mail the order and the court’s reconsideration order to White.