Gunn v. "Bill"

Background

Darrell Gunn was representing himself in this civil action. During an August 29, 2023 telephone pretrial conference, the court told Gunn that he should seek counsel to prepare for trial. Gunn said he was looking for a volunteer lawyer. The court treated that conversation as an oral application for the court to request counsel.

Gunn had previously asked to proceed without paying court fees under the federal statute for people unable to afford them, and the court had granted that request. The court therefore found that Gunn qualified as unable to afford counsel.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request—but cannot appoint or pay for—an attorney to volunteer in a civil case for a person unable to afford counsel. The court explained that civil litigants do not have the same right to counsel as criminal defendants and that requests for volunteer counsel must be granted sparingly.

The court applied factors including whether the claim appeared likely to have merit, the litigant’s ability to investigate and present the facts, whether credibility disputes would require questioning witnesses, the complexity of the legal issues, and whether counsel would be more likely to produce a fair result.

Court’s analysis

In his amended complaint, Gunn asserted an Eighth Amendment claim alleging that Stephen Pietre used excessive force against him. The court found that the claim was “likely to be of substance.” It also noted that pretrial materials had been filed and that the excessive-force claim was proceeding to trial.

The court further found that the relevant factors favored requesting counsel. Some factual issues depended on witness credibility, and the court concluded that a trained attorney would be better positioned to present the case to a jury. The court also determined that representation could help clarify the issues and shape witness questioning.

Ruling

Judge Philip M. Halpern granted Gunn’s application for the court to request counsel. The court cautioned that there was no money to retain counsel in civil cases and that a volunteer might not accept the case. It stated that the litigation would continue at its normal pace and that Gunn should be prepared to proceed without a lawyer. If a volunteer offered to take the case, Gunn would decide whether to retain that attorney.

The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and denied fee-free status for purposes of an appeal.