Opinion
No. 04 C 1444.
June 30, 2004
MEMORANDUM OPINION
This matter is before the court on Plaintiff Kevin Neal's ("Neal") motion for leave to proceed in forma pauperis and on his motion for appointment of counsel. A review of the Northern District court's docket reveals that Neal is barred from proceeding in forma pauperis in this instance. Pursuant to 28 U.S.C. § 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). Neal is an inmate at a state correctional institution and he has brought the instant action pursuant to 42 U.S.C. § 1983. Neal alleges that the correctional institutional continually fails to properly forward his legal mail to the clerk of court. Neal is not claiming that he is in imminent danger of serious physical injury. As Neal concedes in his complaint, at least three of his previous actions have been dismissed in this district on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., Neal v. Fairman, Case No. 91 C 5258 (N.D. Ill.) (dismissed pursuant to 28 U.S.C. § 1915(d) by Minute Order of January 21, 1992) (Alesia, J.); Neal v. Regan, Case No. 95 C 2036 (N.D. Ill.) (dismissed pursuant to 28 U.S.C. § 1915(d) by Minute Order of October 24, 1995) (Alesia, J.), appeal dismissed May 31, 1996 (7th Cir.); and Neal v. Moore, Case No. 95 C 4780 (N.D. Ill.) (dismissed pursuant to 28 U.S.C. § 1915(d) by Minute Order of September 14, 1995) (Norgle, J.). All of the above actions were dismissed prior to the enactment of the PLRA in 1996. However, pre-PLRA dismissals should be counted toward the statute's "cap" on previous dismissals. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996) (indicating that such an "[a]pplication of the new Act is not impermissibly retroactive . . . because the statute does not change any of the legal consequences of deeds preceding its enactment"); Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997) (stating that "in light of the purposes of (Section 1915(g)), its reference to "prior occasions" also must encompass dismissals that preceded the effective date of the act."); Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996) (noting that application of Section 1915(g) does not raise any retroactivity concerns because it only governs procedural issues and not substantive rights, as proceeding in forma pauperis is not an absolute right); Green v. Nottingham, 90 F.3d 415, 418-20 (10th Cir. 1996) (indicating the same).
Accordingly, 28 U.S.C. § 1915(g) bars Neal from proceeding without the full prepayment of the statutory $150 filing fee. See also N.D. Ill. Local Rule 3.3(e). For the foregoing reasons, this court denies the motion for leave to proceed in forma pauperis. If Neal fails to pay the $150 filing fee by July 27, 2004, the court will dismiss this action.
A civil litigant does not have a right to appointed counsel. Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997). However, a court in its discretion, can appoint counsel for indigents in a civil action pursuant to 28 U.S.C. § 1915(e)(1). The Seventh Circuit provides the following non-exclusive list of five factors to consider when deciding whether to appoint counsel: "(1) the merits of the indigent's claim; (2) the ability of the indigent plaintiff to investigate crucial facts unaided by counsel; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) the capability of the indigent to present the case; and (5) the complexity of the legal issues raised by the complaint." Jackson v. County of McClean, 953 F.2d 1071, 1072 (7th Cir. 1992) (citing Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981)); see also Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993) (stating that the appointment of counsel standard can be distilled to whether there are "`exceptional circumstances' as determined by `an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'") (quoting Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984)).
Notwithstanding the five factors listed in Jackson, a threshold issue for the court is whether the plaintiff has made a reasonable effort to retain counsel and "was unsuccessful or . . . was effectively precluded from making such efforts." Jackson, 953 F.2d at 1073.
Neal failed to answer paragraph 2 of his application for an appointment of counsel which explicitly asks him to list his attempts to secure counsel. We also note that even if he properly filled out paragraph 2, this case does not involve the type of complexity that would warrant an appointment for him and his claim does not appear to be meritorious. In addition, Neal has not shown that he will be unable to investigate the crucial facts without the aid of counsel. Therefore, an appointment of counsel is not appropriate at this juncture and we deny the motion for appointment of counsel without prejudice.