Easterling, Clarence v. Kopp, N.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006*
Decided February 21, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3118
CLARENCE M. EASTERLING, Appeal from the United States
Plaintiff-Appellant, District Court for the Eastern
District of Wisconsin
v.
No. 04-C-615
NICOLE KOPP and ALBERT
GONZALES, William C. Griesbach,
Defendants-Appellees. Judge.
ORDER
Clarence Easterling sued under 42 U.S.C. § 1983 claiming that Nicole Kopp
and Albert Gonzales, police officers in Kenosha, Wisconsin, violated his Fourth
Amendment rights by searching his apartment without a warrant. Kopp and
Gonzales suspected Easterling of stealing frozen pizzas from a convenience store and
had tracked him to his apartment a short time after the April 2001 theft. The
officers admit that they entered the apartment that Easterling and several other
After an examination of the briefs and the record, we have concluded that
*
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
05-3118 Page 2
men shared, and that they searched the living room and kitchen and confiscated
several frozen pizzas from the freezer (theft charges were brought but later dropped
when Easterling pleaded guilty to other, unrelated crimes). In moving for summary
judgment, however, the officers submitted an affidavit from Kopp stating that one of
Easterling's roommates, David Scheuer, gave permission to enter and look around
the apartment. The officers also submitted an affidavit by Scheuer stating that he
let the police into the apartment and gave permission to look around. The district
court granted summary judgment in favor of Kopp and Gonzales.
On appeal Easterling argues that the district court erroneously failed to enlist
counsel to assist him, and that this error resulted in his suit being dismissed at
summary judgment. Easterling explains that his presentation was hampered by the
purported complexity of the consent issue and his lack of experience in civil
litigation. He also says that, because a "no-contact" order prevented him from
communicating with Scheuer, he needed counsel to interview Scheuer and ascertain
whether Scheuer in fact had given the officers permission to enter and search the
apartment.
The officers reply that the latter contention—whether offered as a reason why
counsel was necessary or as an independent argument—is forfeited because
Easterling failed to raise it in the district court. We agree. Contentions made for
the first time on appeal are forfeited. Harper v. Vigilant Ins. Co., 433 F.3d 521, 528
(7th Cir. 2005); Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th
Cir. 2004). Although Easterling included in his complaint a one-sentence request for
appointment of counsel, he never mentioned the no-contact order (which as far as we
can tell, was imposed as a condition of post-imprisonment supervision that he has
not yet commenced) or informed the district court that he was unable to contact
Scheuer directly. In fact, he did not give the court any explanation at all for
requesting counsel. Nor did he alert the court by way of Fed. R. Civ. P. 56(f) that he
would be unable to oppose the officers' motion for summary judgment unless he was
given an opportunity to interview Scheuer. See Kaufman v. McCaughtry, 419 F.3d
678, 686 (7th Cir. 2005); Serpico v. Laborers' Int'l Union of N. Am., 97 F.3d 995, 998
(7th Cir. 1996).
In any case, the district court did not abuse its discretion in deciding not to
seek counsel for Easterling. Litigants requesting that counsel be recruited must
show as a threshold matter that they made a reasonable attempt to secure private
counsel. Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004); Zarnes v. Rhodes, 64 F.3d
285, 288 (7th Cir. 1995); Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th
Cir. 1992); see also 28 U.S.C. § 1915(e)(1). Easterling did not even suggest to the
district court that he attempted to secure private counsel, nor did he explain why he
failed to do so. Moreover the difficulty and complexity of a case is an important
factor in determining whether counsel is necessary. See Gil, 381 F.3d at 656. The
05-3118 Page 3
district court considered this factor and correctly concluded that Easterling's case
was not complex; either Scheur gave the officers permission to enter and search the
apartment or he did not.
Easterling also argues that the district court erred in awarding costs to the
City of Kenosha, which was never a party to the litigation. We cannot review this
argument because Easterling did not appeal the order of costs. A notice of appeal
from a judgment on the merits is not effective with respect to a later-issued award of
costs. See Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 468–69 (7th Cir. 1999);
United States v. Dennis, 902 F.2d 591, 592–93 (7th Cir. 1990); Wieglos v.
Commonwealth Edison Co., 892 F.2d 509, 511 (7th Cir. 1989). In this case costs
were awarded after Easterling filed his notice of appeal from the final judgment on
the merits. He never filed a second notice of appeal or amended the original to
include the order of costs. As a result, the propriety of awarding costs to Kenosha is
beyond the scope of this appeal.
AFFIRMED.