Dean Justin McKeever v. Thomas Israel and Gregory Hilt

motions for trial court denied McKeever’s POSNER, and Circuit Before BAUER plaintiff repre- LARSON,* Judges, Senior District throughout proceedings sented himself Judge. below. long The claims evolved over a series of LARSON, Judge. District Senior ultimately pretrial motions. As defined indigent state This is an action court, for determi- question (1976) for prisoner under 42 U.S.C. § single nation at trial was narrowed to “the alleged rights. of constitutional deprivations Hilt, issue of the defendant whether Dean Justin McKeever Plaintiff-appellant wrongfully plain- forced December Waupun is an inmate at correctional separate tiff to 23 letters from the ones he operated by Depart- the Wisconsin facility prison out of the to a court had taken De- ment Health Social Services. Entry appearance.” Docket [hereinafter Thomas Israel is the fendant-appellee that he 49. McKeever maintains left Doc.] Waupun. Defendant-appellee Warden at 29,1977, prison on November state officer at the Gregory Hilt is a correctional hearing on the of his modification We the judgment reverse prison.1 sentence with 35 character reference letters district court and remand possession. in his He claims that his consist- proceedings of counsel and further prison “sepa- return to the he was forced to opinion. ent with this letters, 15 of which were never rate” to him.2 returned 10,1978, pro complaint July In filed his se prison policy that a for- McKeever A court trial on the miss- taking in excess of bidding ing letters was held on November case, plaintiff’s pieces legal or social mail when he left At the close of * Larson, being Judge The Honorable Earl R. Senior claims that addition to gain the United States District Court for the District efforts to modification of relevant to his Minnesota, by designation. sentence, sitting germane the letters were also his clemency. pending petition for executive original complaint irreparably 1. The named Israel and two He claims that he was harmed correctional officers—Fred Zurbachen and Jo- the letters. the loss of seph Scheradella —as defendants. Hilt was subsequently added and Zurbachen and Scher- adella were dismissed as defendants. respond motion Defendants granted district court defendant’s there was no granting In abuse discretion involuntary 1915(d) dismissal. because section motion, merely allows the judge emphasized district court to “request” rather “appoint” than thing one counsel for an “Complaint says indi- plaintiff’s Further, gent litigant. another.” Tran- defendants testimony says his sworn maintain that even provides statute his amended script [hereinafter Tr.] authority to appoint the district plaintiff that on December complaint stated did court its abuse discretion under 1,1977, McKeever from prevented Hilt had Finally, Maclin. argue defendants if taking more back to his cell than 12 letters district the court its abused discretion in the while at appearance, after state court failing recognize to power appoint its to McKeever trial in the federal district court 1915(d), counsel under proper the contact with Hilt admitted he had no remedy would be to allow the district court 1, judge on December 1977. trial cited The to exercise its discretion on remand. grounds granting other de- numerous dismissal, involuntary fendant’s motion for Beyond issue, of counsel including showing proxi- the lack of any McKeever alleges number of additional cause of the mate between the loss letters grounds for reversal: gain and McKeever’s to a modifi- inability 1. The by district court erred not exer- of his cation sentence. cising its discretion under 28 U.S.C. 1915(c)(1976) to order payment § pauperis ap McKeever filed his in forma government out of funds of the fees se,3 appointed and we counsel peal pro to subpoenaed of witnesses by an indi- represent him Court.4 The fo before this gent party;5 arguments appeal cus of the on has been 2. the district court appoint abused its the trial court’s refusal to discretion not allowing to amend or plaintiff. maintains that McKeever supplement complaint with allega- not recognizing district court erred in plaintiff’s tions contained affidavit authority its to counsel under 28 September filed concerning 1915(d) (1976) hence in U.S.C. entire beatings by guards, denial of neces- ly failing to exercise its discretion. More medicine, sary and other serious inci- over, it argues McKeever that was an abuse dents physical abuse in retaliation of discretion not suit; filing for the of this plaintiff stated a claim and the meritorious specified other factors Court Ma the court erred in granting below Freake, 885, (7th clin v. 887-89 F.2d Cir. Warden Israel’s motion for summary 1981), present. requests were McKeever judgment plaintiff’s claim of an judgment this Court to reverse of the prison policy limiting the district court and to with instruc remand amount of mail a could take for the appearances tions counsel. to or back from court Appeals appealed 3. Because from the final The United States Court of for the court, judgment of the Sixth has in dictum: district Circuit stated distinguished is thus from Randle v. Victor We think the sound is within discre- Co., 1064, Welding Supply 664 F.2d payment tion of the to order the district court 1981), appeal where we refused from an costs, as other witness fees as well normal denying appointment of order counsel. government out of under funds Section 1915 where the court made an initial determi- has 4. We Robert Burns of the P. North- litigant nation is without that the funds its University Legal represent western Clinic to status, grant pauperis inof forma appellant Attorney before this Court. Burns showing further witness is neces- Cynthia has been aided senior law students sary presentation litigant’s for the full Shoenberger Kennedy. G. G. Kathleen case. three Court wishes to thank these individuals 767, Igleburger, Morrow v. 772 n.7 for their assistance. denied, cert. 439 U.S. (1976). S.Ct. 59 L.Ed.2d 78 security by person therefor who judge provide trial did not makes when the pay with the notice of the need affidavit that he is unable to such response give security a counter-affidavit costs or to file therefor. Such af- pol- statement that no such fidavit to Israel’s shall state the nature of the ac- existed;6 icy tion, appeal defense or and affiant’s be- lief that he is entitled to redress. failing court erred in grant expedited or at least hold an hearing on for a plaintiff’s motion (d) may request attorney preliminary injunction against retali- any person such unable to filing ation for this lawsuit when employ counsel and dismiss the case plaintiff’s September affidavit of untrue, allegation poverty retaliation detailed incidents of if satisfied that the action is frivolous or and defendants failed to submit malicious. counter-affidavits; There should be no that a “district by Congress 5. the enactment court has appoint broad discretion to coun- Rights of Institutionalized Per- Civil indigents 1915(d).” sel for under 28 U.S.C. § Act, 7, 1997e, sons 42 U.S.C. § § Maclin, 886; 650 F.2d at see also McBride v. (Supp. 1980), during IV pendency Soos, 610, (7th 1979); 594 F.2d 613 Cir. of requires this lawsuit vacation of Heidelberg Hammer, 429, v. 577 F.2d 431 dismissing district court’s order (7th 1978); Chapman Kleindienst, Cir. v. McKeever’s claims for confiscation of 1246, (7th 1974); 507 F.2d 1250 & n.6 Cir. property for failure to exhaust state 363, Epps, (7th Ehrlich v. Van remedies;7 administrative and 1970); States, Cir. LaClair United 6. court abused district its discretion 486, (7th 1967). F.2d 489 & n.3 Cir. awarding defendants in attor- $200 The trial court in the case refused ney’s plus fees costs when McKeever appoint to counsel for McKeever on at least indigent prisoner proceeding was an separate 13, September four occasions. On pro frivolous, se and his claim was not 1978, subsequent to the incidents of unreasonable, or without foundation. abuse, physical McKeever moved under 18 inexcusably Defendants have failed to brief (1976) 3006A(g) appointment U.S.C. for § issues, asserting these additional of counsel. The April trial court ruled on arguments McKeever’s for reversal are 30, 1979, that without merit and that the district court’s [wjith respect plaintiff’s request to provide adequate

memoranda treatment. counsel, appointment of the Court wishes starting analysis

The for our point plaintiff to advise that it has no authority appointment is 28 provide of counsel issues to compensation for counsel in (1976): U.S.C. Therefore, § civil cases. the Court declines plaintiff’s request appoint to counsel in (a) Any court of the United States this action. commencement, authorize prosecution suit, or defense of any proceed- action or Doc. 27. request McKeever renewed his ing, criminal, therein, appeal or 3006A(g), under section but prepayment without costs or of fees and court found on October Although appeal, Rights it is not cited the Civil of Institutionalized Persons Rowe, Act, 96-247, our recent decision in Muhammad v. Pub.L. 94 Stat. 349.” 450 U.S. at 1981), may We, turn, F.2d 695-96 be con- 101 S.Ct. at 1338. remanded trolling here. argues to the district court. Plaintiff property claims in Jenkins were similar to Brewer, 101 S.Ct. Jenkins v. 450 U.S. those in the case at bar and that the Act re- (1981), the United States L.Ed.2d 327 quires reversal of the district court’s dismissal Supreme decision in Jenkins Court vacated our for failure to exhaust administrative remedies Brewer, 624 F.2d 1106 proceedings. and remand for further light “remanded for further consideration in right, All let the record request for show that with deny plaintiff’s again “must counsel, to respect appointment has no funds to the counsel because it already Doc. 36. McKeever Court has indicated that it can counsel.” pay such 3006A(g), under section deny twice more must that motion. It has no moved 6, 1980: authority ruled on October to appoint indigent the court counsel for litigants in this kind of a case. has filed a motion to attorney pursuant appointment of Tr. proceeded 5-7. The trial with McKeev- section, how- 3006A(g). This 18 U.S.C. § er representing himself. ever, applies only entirely The district to court failed exer- corpus proceedings. counsel habeas 1915(d) cise its discretion under section be- Therefore, authority un- lacks the Court authority cause its recognize it did not to in a counsel to der this section appoint counsel. Defendants maintain that Furthermore, this. civil action such as there was no abuse of discretion because funding, the Court of the lack of because 1915(d) merely allows a court action in a civil cannot counsel “request” “appoint” counsel rather than Therefore, under 28 U.S.C. weight authority but the vast plaintiff’s request and elsewhere9 demonstrates Circuit8 hereby and is denied. must be power that the of a provide court to omitted and em- (original emphasis Doc. 1915(d) commonly under section referred trial, added). day phasis On to as power “appoint.” The distinction attempt gain McKeever made one last “requesting” “appointing” between “that the stating Court appointed attorney, irrelevant in the case where the in right proceed to forma did not have operating district court was under the mis- me due counsel.” pauperis giving without authority taken that it had no impression responded: 5. The district court Tr. whatsoever to secure counsel for McKeever. counsel for authority appoint I have no to Moreover, it should be remembered that the Actions. It’s a indigent parties in Civil “appoint- of a between issue distinction We problem that we encounter. frequent “request” for coun- ment” of counsel and a that will attorneys do have sometimes have raised on sel is one that defendants contingent fee Civil Actions on accept appeal not one that was articulated bases, and we do endeavor to maintain the trial court. It is also irrelevant that that, I attorneys roster of that do but will section brought his motion under plaintiff authority appoint. have no to 1915(d). Al- 3006A(g) rather than section

though trial court was correct that McBride, “appointment with a motion for nection 8. In the recent case of Maclin and (emphasis spoke solely “appoint- at n. 3 this Court in terms of counsel.” 374 F.2d 489 & power “appoint.” added). Heidelberg, ment” of counsel and a to where this Court Even 886-89; 1915(d) merely See 650 F.2d at 594 F.2d at 613. Earli- noted “28 U.S.C. autho- § statutory employed er attorney rep- cases have term ‘request’ court to to rizes the an “request,” interchangeability in this pau- party proceeding in forma resent a who is ” “appoint” apparent context of the word peris, “appointed we also noted that we had Chap- reading opinions as a whole. In 1915(d) represent to counsel” under section “appointment man moved (em- appeal. 577 F.2d at 431 sel,” and this directed the district court Court added). argu- phasis response plaintiffs to necessary request pursuant to 28 “to make the ment in that case that the district court had 1915(d).” (emphasis 507 F.2d at 1250 U.S.C. § counsel, failing “appoint” this erred in to Court added). In Ehrlich this Court stated “to consider remanded for the district court “[although 1915(d) authorizes the § 28 U.S.C. requested should be to act for whether counsel request attorney an to court to added). (emphasis plaintiff.” Id. person employ to ... we con- unable its clude that the district court was well within Robinson, See, Ray (3rd e.g., F.2d 474 9. v. 640 denying appellant’s motion discretion 1981); McQuade, United States v. 579 F.2d Cir. attorney appointed to advise him.” have an Jackson, (9th 1978); Cir. Shields Likewise, added). (emphasis 428 F.2d at 364 1978). F.2d 284 Cir. 1915(d) in con- this cited section LaClair Court the sound appoint could not counsel in a section 1983 discretion of district courts unless action the court’s rul- provision,10 under this denial would result in fundamental unfair ings reflect a mistaken belief that it had no impinging ness process rights.” on due power provide attorney an for the at all F.2d at general 489. This has become the plaintiff. most from the apparent This is standard in reviewing this Circuit for refus trial ruling court’s October appoint als to counsel under explicitly where it referred to section 1915 Maclin, 886; Heidelberg, See F.2d at attor- said that it could not 431; 577 F.2d at Chapman, 507 F.2d at 1246 ney provision under this due to a lack of n.6. In Maciin emphasized we that even funding.11 unavailability of funds though highly counsel is compensate attorney seems to discretionary, this does not mean that have major been the concern of the trial beyond district court is review. We held court, bearing power but this has no that, under the process LaClair due stan provide a court to counsel under section dard, the district court had abused its dis See, 1915(d). e.g., Heidelberg, 577 F.2d at refusing cretion in to appoint counsel. We reversed and remanded for proceedings. counsel and further

The failure of court to exer 1915(d) cise its under section discretion In reaching this we conclusion outlined a Ray an abuse of discretion. v. Robin See series of considerations that the district son, (3rd 1981); 640 F.2d Unit courts ruling should take into account when McQuade, ed States 1915(d) on section motions. The threshold 1978). As the United States Court question is whether the claim is of suffi- Appeals for the Ninth Circuit said cient emphasized merit. This Court McQuade: “[ejven frivolous, where the claim is not The refusal counsel is often unwarranted where the in- court was based a failure to digent’s chances of are extremely success indigency demonstrate under nor slim.” 650 F.2d at Assuming that this upon an exercise of discretion satisfied, initial criterion is inappropriate appoint- case was for the variety should consider a of other ment of but rather upon the factors. We noted the considerations that ground authority that the court had no greatest had the applicability to the facts of appoint whatsoever counsel for civil Maciin frequently and which are most cited litigants. support courts in appointment McQuade appeals panel Id. The remanded counsel. at Id. 888-89. The first factor is to allow the district court to exercise its whether the party adequately is able gowill discretion,12 but we further and re- investigate the factual in the dispute. issues appoint mand with instructions to counsel. Appointment of counsel is often warranted appoint- indigent In LaClair this Court said “that where the is unable to conduct a indigents ment of counsel for in habeas investigation. suitable The second factor is corpus proceedings 2255 rests in and section whether only evidence that will be in- 3006A(g) provides: 11. A 10. Section somewhat similar situation is found in Ray Robinson, 474, (3rd Discretionary appointments. Any person — Ap- where the United States Court of subject parole, custody to a revocation of peals that, deny- for the Third Circuit found witness, seeking as a material relief under ing plaintiffs motion for or 2255 of title 28 or 3006A(g) provide sel because section does not may section 4245 of title be furnished attorneys actions, funds for in civil representation pursuant plan whenev- mistakenly recognize failed to its authori- magistrate er United States or the court ty 1915(d). counsel under section justice determines that require the interests of so person financially and such is unable Ray, 478; Heidelberg, 12. See also 640 F.2d at Payment representation. such obtain 577 F.2d at 431. representation may provided be as in subsec- (d) (e). tions developing proof. his present conflicting testi- in the form of troduced is have dimension in and cross examination had a similar that Examination mony. the factfinder should aid McKeever medical difficul- by trained counsel severe third factor determining conjunction request the truth. The ties in with initial his capable is indigent party for appointment September is whether of counsel on If 13,1978, his or her own case. presenting specifically prob- cited medical should counsel capacity lacking, 29, is requisite August lems as the basis of his whether factor is The fourth appointed. be motion for of counsel.13 The unclear. complex or applied the law to be is inability investigate of McKeever to his in the resolution It will aid the court apparent claim is fail- suggested by also present- argument legal issues if difficult any discovery. ure to conduct From the counsel. competent ed on both sides Court, presented appears record to this it these factors emphasized Maclin we that that he documents and conduct- no obtained checklist “are no means an exclusive of the depositions. ed no The nature testi- elements case other .... In some other mony persons called to the McKeever significant even, be found will no doubt stand indicates that he did not even inter- — at 889. controlling.” Id. perhaps, prior view his own witnesses to trial. Maclin fac go beyond We need investigate him helping In' addition to it was however, tors, to demonstrate facts, attorney a trained would have assist- district court abuse of discretion for the examining McKeever in and cross-exam- ed As for McKeever. to fail to ining witnesses. The success of McKeever’s claim, it McKeever’s to the merits of 29, claims about the events of November to dis defendants moved significant 1977, through depended December of occasions on a number miss the action credibility persons called to upon the there the trial court found recognized by judge, testify. As part at least enough merit to allow credibility of key issue on the turned Also, the go forward. plaintiff’s claims to credibility defendant plaintiff versus the from the two distinguished instant case is that McKeever Hilt. Tr. 162. It is true examples Maclin as major cases cited in at trial ultimately impeached himself claims. In one case clearly nonmeritorious any contact of whether he had point vital available to the dispositive defenses were 1, 1977, but at the Hilt on December with there was no defendant and the other motions for McKeever’s time considered controlling of success because the chance counsel, the district court appointment of Maclin, 650 F.2d well settled. law was See how could not have foreseen Pleasure, 296 F.2d (citing at Miller v. Moreover, if trained testify. would denied, (2d 1961), cert. 370 U.S. preserve other able to had been (1962); Ligare 8 L.Ed.2d 830 S.Ct. alleged physical for trial such as issues Harries, 582, (7th 1942)). Cir. v. 128 F.2d McKeever, this instance of mistreatment of would not have been deci- Maclin, self-impeachment that the In found this Court would credibility and and the of witnesses a wheelchair sive plaintiff’s confinement to important.14 the more him from have been all physical pain prevented constant Doc. 50. 13. McKeever’s motion stated: petitioner moves this Comes the and 536, Lockhart, Manning 623 F.2d (ill good health —am

for leave and cause for Ap- (8th of the United States Court Cir. infirmary currently prison with housed in the peals Eighth re- reversed and for the Circuit dysfunction stasis & bladder and venous the with instructions for manded extremity lymphedema which chronic lower plaintiff alleged he had that of counsel where legs open occur the can cause ulceration of prison and there was a warden been beaten paid quite rapidly attention insufficient credibility of the therapy) to conservative warden. versus that of the legal Sect. under Title 18 U.S.C. counsel stages 3006A(g) in the all justice. interest of letters, The record is replete examples general with and the lack of merit to his damaging procedural errors by They claims. maintain that presence that trained counsel would not have counsel possibly been could not have made likely to have made. These are tes- difference under these errors circumstances. tament to McKeever’s lack general of com- responds Plaintiff the focus of the petence to conduct the lawsuit. McKeever proceedings single on the question of sought injunctive relief on behalf of himself separated whether Hilt 23 letters institution, and all other residents of the 1, 1977, McKeever on December was the appears that he never moved for result of an artificial narrowing of the is- certification of a class. His affidavit filed sues, narrowing that would not have oc- 13, 1978, September alleged serious inci- represented curred if McKeever had been abuse, physical dents of but he never suc- by emphasizes importance counsel. He cessfully allegations converted these into an of counsel for the claims he desired to liti- supplemental complaint.15 amended or On gate trial, but was bring par- unable to 18, 1980, August granted trial court ticularly allegations beatings and summary judgment on McKeever’s claim physical abuse. there a prison policy limiting recognize We possibility that the fail- amount prisoners of mail that could take to ure of the district court to and from court appearances. The court’s may, after all the are brought facts reason for this action was that McKeever fore, prove to have been harmless or that had no filed affidavits to counter Warden plaintiff’s claims may not be moot. We Israel’s affidavit that no policy such exist- believe, however, this can only be ed. The trial transcript shows known after McKeever’s fully case is devel- McKeever had little working knowledge of oped presented to the district court hearsay. rules of evidence on a member of the bar. That a

That this case involved difficult or un- proceeding pro given se is to be the benefit clear legal pointedly issues is most demon- of the doubt well established in the case 13, strated the trial court’s December See, Kerner, law. e.g., Haines v. 404 U.S. 1978, denial of defendants’ motion 520-21, to dis- 594, 595-596, 92 S.Ct. miss the property confiscation of claim for (1972); Rowe, L.Ed.2d 652 Muhammad v. failure to exhaust administrative remedies (7th 1981); F.2d 695-96 String- Cir. subsequent grant Rowe, of the motion on Oc- er 1980). tober light of this Court’s recent On remand and the motion ap- Brierton, decision in Secret v. 584 F.2d 823 pointed the trial court should re- 1978). appeal, On plaintiff con- consider rulings its amendment of on tends that the controlling law has been complaint, denial of the prelimi- motion for changed once again by Congress’ enactment injunction, nary summary judgment for Is- Rights the Civil of Institutionalized Per- rael, and property dismissal of the claims. Act, sons (Supp. 1997e IV U.S.C. § determined, Once these and other issues are 1980). scope continuing vitality argue Defendants that even if it was an McKeever’s claims should be clear. The abuse of discretion not to trial court plaintiff’s should also reconsider McKeever, arguments the action of the trial court subpoenas. issuance of was harmless light Although might attempt error in of McKeever’s we to address the admission on the he had no con- rulings stand that merits of the trial court’s earlier issues, tact with defendant Hilt on December these we decline do so and ex- 1977, the he any showing pressly judgment. lack of that had reserve Defendant has been of irreparably significant harmed the loss provided briefing not us with or allegations complaint being beyond tion McKeever in his of the amended included as 29, 1979, May permissible scope complaint amended but filed on of amendments contem- por- plated October the trial court struck this in of the court. an earlier order changed points oral other than the when argument appointed McKeever’s coun- counsel, appointment reargues him, and we are reluc- sel the issues to this is unlike- range questions rule on such a ly tant and makes it foreseeable that we will complete arguments without the aid of have to decide those subsequent issues on a both sides. We that firmly believe appeal in this case. It would make more adversary system justice our works best simply sense to ask the defendants for a zealously compe- when both sides are brief, supplemental give and of course tently represented. principle This has obvi- (who represented by is counsel in implications appointment ous both for the court) this an opportunity to reply to it. indigent prisoners counsel for at the trial important The more issue raised this level proper and the resolution of issues on appeal appointment of counsel appeal. bizarre, McKeever. However dubious— judgment We reverse the of the district might even —it original seem as an matter court and remand for to allow lawfully imprisoned convicts to with this proceedings sel and consistent spend bringing damage their time suits opinion. attorneys’ award of Because the against jailers, their so that instead of re- premised upon fees was the dismissal in flecting on wrongs they have done to below, favor of the defendants this award society exchanging our as it were convicts— will be vacated. indignation prosecute contrition for — mostly imaginary griev- endless series of Defendants shall the costs of this bear against society, ances this branch of federal appeal. jurisdiction is too well established me to POSNER, Judge, dissenting. Circuit not, I question merely and do record passing my in amazement that it has been rights The court in prisoners’ this grow present (In allowed to to its extent. judgment dismissing reverses the the com- year 16,000 fiscal almost suits under (1) plaint appoint- and remands the case for brought by prison- section 1983 were state (McKeev- ment of counsel for the ers.) question Neither do I that 28 U.S.C. er, prisoner) (2) reconsideration 1915(d) empowers the district court in a § the other issues that McKeever raises in rights prisoner’s “request” case to appeal. regret, I am my To unable (on lawyer exactly that means part concur in either of the decision. —whatever which see the in recent discussion Caruth v. words, is, (2) The basis of in the court’s Pinkney, 1048-49 inexcusably the “defendants have 1982)) indigent —to failed to brief” issues other than hope of fee what law- beyond without agree of counsel. I that the expect yer can under U.S.C. neglect unhelpful, defendants’ both plaintiff prevails the event that the and, out, to the this court as it turns de- suit, plaintiffs rarely which these do. I also interests; no fendants’ own that there was question judge do not and hence good neglect; excuse for their case, believing mistakenly I appropriate. that some sanction would be 1915(d) play only comes into this court de- could understand therefore if Congress compensate appropriates funds to clared the defendants default (or “requested”) commit- brief, or, they issues failed to more merci- failing discre- ted error to exercise his sup- fully, ordered the defendants to file tion under this statute. plemental dealing with those issues on brief pain them if being again declared in default on But the what to do. We purpose (1) remanding is have a the case for they refused to do so. But what choice discretion; to the dis- by remanding served the issues the district court to exercise its harmless; them, (3) (2) declaring him I do the error con- judge trict to reconsider views; giving McKeever cluding that the case for understand. We know overwhelming be that it would be possible while it is that his mind counsel is so 1981), was a harmless might an abuse of discretion if the district court error —one him, did not there- request counsel for say happy even a error. directing fore to do so. district strongest argument appointing The for choice, (3). panel majority chooses This to for McKeever relates not I respectfully suggest, does not take seri- (whether issue that was tried Hilt took ously the an exercise of difference between letters) McKeever’s but to McKeever’s ef- discretion and the review of exercise scope forts to broaden the of the suit to standard, under an abuse of discretion allege that the defendants had beaten him applicable to decisions whether to standard up. He the letters but it does lied about 1915(d). Ma- appoint counsel under not follow that he must have lied about the Freake, v. clin beatings too. The district court have 1981) curiam). in a (per Only very clear hamstrung McKeever’s efforts to amend his acting we be warranted in in a case would complaint beatings maybe to include the — matter committed to discretion of the lawyer help he a really did need to him getting district court without the district figure out Rule 15 of the Federal Rules of views;

judge’s prepared and unless we are error, there Civil Procedure. But the if was adopt presumption prisoner a that a in a harmless, any, again though for a dif- rights case is entitled to have counsel beatings alleged ferent reason. The state a him, the facts here do not different cause of action from the make the outcome of the district court’s conversion of the letters. Therefore the exercise of its discretion foreordained. This judgment against McKeever in the seems prisoners’ rights rather routine case, court, upheld by this would not be implausible charges. case: a scatter shot of judicata regard beatings res with charge McKeever’s main re- —unauthorized prevent filing so would not McKeever from pos- moval of a number of letters from his complaint a new based on them. straightforward; session—is if the district court could not have refused to properly My disagreement panel’s resolu- with.the case, appoint counsel in this when could it tion of the of counsel issue is properly do so? independent approach whether dealing with such issues set forth in Maclin I the use of events at trial to Freake, 887-89, supra, 650 F.2d at show that McKeever was entitled to coun- correct; panel’s' opinion, followed sel. The issue is not whether McKeever try my unhappiness but I will not to conceal another, his trial and should have botched approach. with that Maclin holds that lawyer, time with a but whether on deciding whether to counsel for a they basis of the facts appeared as prisoner in a civil case the district court requested appointment take into account probable should merit sel judge proper could not in the claim, of the whether there are difficult exercise of his have discretion refused to issues, legal competence factual and the grant request. The events at trial are prisoner himself. But relevant, but on the distinct issue of harm- this omits the important most consideration error, provide ground less they where ability prisoner of all—the of a to secure The trial affirmance rather than reversal. appointed (or retained as distinct from “re- revealed that McKeever was a liar. In his quested”) counsel in a meritorious case. complaint he had sworn that defendant Hilt letters; damages sought, Where are was the person who had taken his difficulty finding lawyer should have no at trial Hilt was nowhere he testified that willing contingent-fee to take his case on a If it is about when the incident occurred. basis, provided the case has some ought to lose his case merit. clear that McKeever merits, only injunctive Even if sought, oh the the failure to relief is he him, in a civil where there is no should be able to retain counsel to assist merit, right having Randall him with a claim substantial constitutional n.6 Wyrick, 642 F.2d because U.S.C. 1988allows the court to enough reach. There not rights lawyers in civil are in winning party a award the fee, the attorney’s and a reasonable satisfy prisoners’ case America to demands for matter of course is as a award made counsel; legal those are insa- free demands See, e.g., Bond the winner. plaintiff is the than tiable. But more ominous the extra 1980). Stanton, F.2d judges, the and legal profession, burdens on every is prisoner administrators if prison of retained counsel Encouraging the use lawyer prose- test of the merits of of a given a market the assistance provides thus If it is a meritorious prisoner’s implications claim. civil are the cuting the his claims lawyer; a money be it for claim there will of criminal perceived legitimacy the not to be on some ought is not it forced if it gates if sooner are the no punishment contrast, the unpaid lawyer. hapless convicted criminal de- slammed shut on the end- is a of of counsel source appointment are turned and the fendant than the tables prisoners lawyers. and less conflict between counsel at his prosecuted appointed —with common- following pattern has become The prosecutor. side—becomes the case, reviewing lawyer the the place: after Perhaps apocalypse already the who has been are becom- prosecutions us. Our criminal case has advises the court that the prisoner apt ing ugly use word—multi- —to withdraw; merit, and no and asks leave phase comprises phasic. The first familiar (who lawyer prisoner then accuses that the any ap- and direct the criminal trial itself choice) of personal all his after was not it. conviction has been from After the peal requests incompetence and bad faith and affirmed, phase postconviction pro- the of cycle The be- appointment of another. the begins postconvic- the state ceedings ends prisoner often the gins again, very —first (I speaking of state proceedings tion am se. up proceeding pro involves present since the prosecutions, Ma- Thus, panel that decided unlike the corpus federal habeas prisoner), a state then clin, be presumption I should a believe there sentence has been maybe, after prisoner’s counsel in against appointing served, well. third coram nobis as Wilson, 277 Allison rights civil suit. See getting way. under will meanwhile be phase (N.D.Cal.1967); Owens v. F.Supp. lawsuits, of- It consists the section Corp., 477 Agricultural & Chem. Swift numerous, complaining about mistreat- ten opin- (E.D.Va.), aff’d without F.Supp. neglect officials and em- by prison ment or ion, 1979). But even 612 F.2d 1309 correct is released thought approach ployees. I Maclin When disposed we agree imagination not have his jail I could or has exhausted correctly; I am con- claims, ease devising the fourth decision—both panel’s cerned that consisting against phase begins, lawsuits opinion language in the some outcome and judges and the in the prisoner’s lawyers panel suggest that this could be read to failing complaining phases earlier merely rejecting not as regards Maclin rights they violated those to secure civil against appointment presumption litigation futile has rights. When all this in favor creating presumption sel but as ended, finally the criminal conscious (“We firmly believe appointment wrong he but of his own multitu- did best justice works adversary system our justice claims whose vindication dinous compe- zealously and when both sides are kept always just unjust legal system obvi- has tently represented. principle This emerges not chas- outside his reach. He implications ... for the ous tened, passionate but full of resentment. at the trial indigent prisoners enlarging right to coun- By prisoner’s the dis- interpreted by be ”) may level ... — sug- today, respectfully I sel the decision step as this circuit another trict courts of moves us to the time when gest, closer making the road toward will above become pattern cases rou- sketched prisoners’ rights justice system. like I should norm in our criminal tine. That is not a destination

Case Details

Case Name: Dean Justin McKeever v. Thomas Israel and Gregory Hilt

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 29, 1982

Citation: 689 F.2d 1315

Docket Number: 80-2785

Court Abbreviation: 7th Cir.