Eric Mapes v. State of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1384
ERIC J. MAPES,
Plaintiff-Appellant,
v.
STATE OF INDIANA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-00691-JMS-TAB — Jane Magnus-Stinson, Chief Judge.
____________________
SUBMITTED JUNE 28, 2019 — DECIDED AUGUST 6, 2019 *
____________________
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
*We agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments and oral
argument would not significantly aid the court. FED. R. APP.
P. 34(a)(2)(C).
2 No. 19-1384
PER CURIAM. Eric Mapes was arrested for trespassing af-
ter being refused service at a CVS store. He sued the State of
Indiana, CVS, and a number of individual defendants assert-
ing a long list of grievances under federal and state law.
Mapes asked the district court to recruit counsel for him. The
district judge denied that request, dismissed Mapes’s com-
plaint without prejudice for failure to state a claim, and
suggested several amendments to the complaint. Mapes did
not heed that advice and now appeals the judge’s refusal to
recruit counsel. We affirm. The judge did not abuse her
discretion when she denied his request for pro bono counsel,
provided an opportunity to amend, and offered instructions
on how best to do so without a lawyer.
I. Background
At this early stage, we accept the allegations in Mapes’s
complaint as true. See Perez v. Fenoglio, 792 F.3d 768, 774 (7th
Cir. 2015). On January 21, 2019, CVS employees refused to
issue Mapes a MoneyGram money transfer, leading to a
verbal conflict. The store manager contacted the police, who
arrested Mapes for trespassing. They took Mapes to the
Marion County jail, where guards assaulted him and medi-
cal staff ignored his physical disabilities.
About three weeks later, Mapes sued the State of Indiana,
CVS, and others for violating what he calls “the law they are
required to [uphold] when dealing with disabled people,”
including the Americans with Disabilities Act (“ADA”),
among other claims. 1 He simultaneously moved for the
1 The defendants were not served with process in the district court and
are not participating in this appeal.
No. 19-1384 3
appointment of counsel. See 28 U.S.C. § 1915(e)(1) (“The
court may request an attorney to represent any person
unable to afford counsel.”). Mapes asserted the need for pro
bono representation based on his poor hearing, social anxie-
ty, a speech disorder, and an unidentified mental disability.
The judge screened and dismissed the complaint without
prejudice for failure to state a claim, see id. § 1915(e)(2), and
advised Mapes on how to amend it. The judge informed
Mapes that his amended complaint “should set forth what
happened during the incident and the facts that support his
belief that CVS refused to serve him because of his disabil-
ity.” She explained that Mapes should identify the people
who harmed him and describe how they did so. Finally, she
told Mapes to bring unrelated claims in separate lawsuits.
The judge’s order gave Mapes until March 22 to file an
amended complaint. Failure to do so would “result in the
dismissal of [his suit] without further notice or opportunity
to show cause.”
In that same order, the judge denied Mapes’s request for
appointed counsel. Relying on Kadamovas v. Stevens, 706 F.3d
843 (7th Cir. 2013), she described the request as “premature.”
Mapes hadn’t yet filed a “viable complaint.” And because
the defendants had not yet responded to the complaint, or
even been served with process, the judge could not reliably
assess Mapes’s need for an attorney. Mapes could renew his
motion after filing an amended pleading. Rather than at-
tempt to follow the judge’s amendment instructions, Mapes
appealed.
4 No. 19-1384
II. Discussion
First, a word on our jurisdiction: An order dismissing a
suit without prejudice ordinarily is not final and thus not
appealable unless it effectively ends the litigation. See
28 U.S.C. § 1291; Mostly Memories, Inc. v. For Your Ease Only,
Inc., 526 F.3d 1093, 1097 (7th Cir. 2008). When a district judge
dismisses a suit but provides an opportunity and a deadline
to cure deficiencies, the conditional order becomes final after
the deadline passes. Shott v. Katz, 829 F.3d 494, 496 (7th Cir.
2016). Mapes did not file an amended complaint before the
court-imposed deadline, so we have jurisdiction.
Mapes argues that the judge violated the ADA by deny-
ing his request for counsel. The ADA and relevant regula-
tions require public entities, including courts, to make
“reasonable modifications” to avoid disability-based dis-
crimination. See 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(7);
Tennessee v. Lane, 541 U.S. 509, 531–34 (2004). But
§ 1915(e)(1)—not the ADA—governs a court’s discretion to
recruit counsel for a pro se litigant. We’ve explained that a
district judge confronted with a motion for pro bono counsel
must assess (1) whether “the indigent plaintiff made a
reasonable attempt to obtain counsel or [had] been effective-
ly precluded from doing so; and if so, (2) given the difficulty
of the case, [whether] the plaintiff appear[s] competent to
litigate it himself.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007) (en banc) (citing Farmer v. Haas, 990 F.2d 319, 321–22
(7th Cir. 1993)). This standard takes account of mental or
physical capabilities that may affect a plaintiff’s ability to
litigate. See id. at 659–60.
The judge did not abuse her discretion when she denied
Mapes’s request for counsel and advised him on how to file
No. 19-1384 5
an amended complaint. “The inquiry into the plaintiff’s
capacity to handle his own case is a practical one, made in
light of whatever relevant evidence is available on the
question.” Id. at 655. Mapes demonstrated that he was
physically able to file a complaint and mentally able to recall
the events of January 21, 2019. The judge was not “required
to offer [Mapes] legal guidance on whether and how to
amend [his] pleadings,” Kiebala v. Boris, 928 F.3d 680, 684
(7th Cir. 2019), and under these circumstances, denying
Mapes’s request for counsel and advising him on how to
cure his complaint’s deficiencies was entirely reasonable. If
for any reason Mapes could not comply with the judge’s
pleading instructions, he needed to explain why and renew
his request for appointed counsel. See Pruitt, 503 F.3d at 659.
He did neither. And Mapes hasn’t argued on appeal that he
was incapable of following the judge’s directions.
One final point bears mentioning. In denying the request
for pro bono counsel, the judge cited a passage from
Kadamovas: “[U]ntil the defendants respond to the complaint,
the [pro se] plaintiff’s need for assistance of counsel …
cannot be gauged.” 706 F.3d at 846. That language simply
acknowledges the difficulty of accurately evaluating the
need for counsel in the early stages of pro se litigation.
Because “[t]he inquiry into plaintiff competence and case
difficulty is particularized to the person and case before the
court,” it is not susceptible to judge-made bright-line rules.
Pruitt, 503 F.3d at 656. So it’s incorrect to read this sentence
in Kadamovas as restricting a district judge’s discretion to
recruit counsel for a deserving plaintiff until after the de-
fendant has answered the complaint. While such cases may
be unusual, a judge may recruit counsel to help a pro se
litigant amend his complaint. See Perez, 792 F.3d at 784
6 No. 19-1384
(explaining that “[w]here an inmate alleges an objectively
serious medical condition, it may be better to appoint coun-
sel—so that he or she can investigate and flesh out any claim
that may exist—than to dismiss a potentially meritorious
claim”).
AFFIRMED