Caruth v. Pinkney

• Decision Date: 13 July 1982
• Docket Number: No. 79-2166,79-2166
• Parties: Alsansa X. CARUTH, Plaintiff-Appellant, v. Thaddeus E. PINKNEY, Warden, David Sandahl, Assistant Warden, and William O'Sullivan, Assistant Warden, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1044

683 F.2d 1044

Alsansa X. CARUTH, Plaintiff-Appellant, v. Thaddeus E. PINKNEY, Warden, David Sandahl, Assistant Warden, and William O'Sullivan, Assistant Warden Defendants-Appellees.

No. 79-2166.

United States Court of Appeals Seventh Circuit.

Argued May 21, 1982.

Decided July 13, 1982.

Michael B. Nash, P. C., Chicago, Ill., for plaintiff-appellant.

Katheryn Spaulding, Legal Counsel, Dept. of Corrections, Chicago, Ill., for defendants-appellees.

Before PELL, WOOD and COFFEY, Circuit Judges.

PER CURIAM.

Plaintiff Alsansa Caruth, an inmate at the Pontiac Correctional Center, commenced a pro se action under 42 U.S.C. § 1983 against various prison officials, alleging that the prison authorities violated his constitutional rights in disciplining him and taking away his job as a law clerk at the prison library. After a bench trial, the district court entered judgment for the defendants. Caruth appeals from this judgment. We affirm.

I.

Alsansa Caruth alleged in his complaint that in December of 1976 a fellow prison inmate gave him an application for membership in the Ku Klux Klan, telling him that such applications were being distributed to white guards and inmates at the prison as part of a Klan membership recruitment drive. At that time, Caruth, who is black, was a clerk in the prison law library and had access to the library photocopy machine. To photocopy material, Caruth was required to obtain the authorization of the prison librarian, George Toussaint. ¹ Because Caruth feared that Toussaint would either deny him permission to photocopy the Klan membership application or confiscate it, Caruth surreptitiously enclosed the Klan application in a stack of legal documents which were to be photocopied. He then received permission to photocopy the papers as a part of his job. Caruth mailed copies of the Klan application to several newspapers and organizations, as well as to state corrections officials in Springfield, Illinois.

After Caruth mailed these copies, state prison authorities initiated an investigation into Klan activities at the prison. An "investigator from Springfield" (who is not further identified) and the prison's Internal Affairs Officer, Lt. Polizzi, met with Caruth on January 10, 1977, in connection with the investigation. At the interview, Caruth admitted making the copies. He heard no more about the matter until two months later when, on March 10, 1977, he was called to a meeting with Assistant Warden O'Sullivan, Lt. Polizzi, and the unidentified investigator from Springfield. Caruth again admitted that he had copied and mailed the Klan applications, but he refused to reveal the name of the inmate who gave him the original application. Two days later, Caruth was disciplined for the unauthorized use of the photocopy machine and sentenced to serve 30 days in segregation. He was also dismissed from his job as law clerk.

On the basis of these allegations, Caruth contended in his complaint that he was disciplined for informing outsiders about Klan activity within the prison and that the charge of unauthorized use of the photocopy machine was nothing more than a mere pretext. Caruth also contended that he was being punished in violation of a prison regulation requiring charges to be brought within 72 hours of the discovery of the offense. Specifically, Caruth claimed that prison officials knew of his unauthorized use of the photocopy machine on January 10, 1977 and that he was not punished until March 12, 1977, after the State investigation had concluded. As relief, Caruth requested a "full and fair hearing" and reinstatement to his job as law clerk at the library.

Before the defendants filed an answer to the complaint, Caruth filed a supplemental complaint. After reiterating his charge that he was disciplined for bringing about an investigation on Klan recruitment activities at the prison, Caruth alleged that prison officials had initiated another pretextual charge against him, namely, that he had engaged in homosexual activity with another inmate. Caruth further alleged that in yet another example of "institutional retaliation" directed against him for the Klan investigation, prison authorities arbitrarily confiscated 15 encyclopedias and a law dictionary from him. Finally, he charged that he had not received adequate medical care for his ulcerated stomach. Caruth requested, in addition to the previously requested relief, damages for lost wages and for pain and suffering, and reinstatement of good-time benefits that had been taken from him. Caruth also requested counsel be appointed pursuant to 28 U.S.C. § 1915(d). This request was denied by the court. ²

Trial was held on September 25, 1979. Caruth testified in his own behalf and introduced into evidence a prison pass showing that he had been interviewed by Lt. Polizzi on January 10, 1977 and the Ku Klux Klan application that he had photocopied. The defendants' only witness was the librarian Toussaint. In rebuttal, Caruth called Assistant Warden Sandahl. At the close of the evidence, the district court ruled that Caruth had not been punished in retaliation for initiating a state investigation on Klan activities in the prison but was in reality punished for the unlawful use of the photocopy machine. ³

After the court announced its verdict, Caruth asked the court why Lt. Polizzi had not been called to testify, stating that Polizzi could "decide the whole thing." Defense counsel explained that, although Lt. Polizzi was named in the final pretrial order as one of defendants' potential witnesses, he was unavailable for the trial because of a death in his family. The court agreed, adding that in any event, "there is no requirement that any party call all the witnesses that they think they might call."

Caruth now appeals the district court's judgment, asserting numerous grounds for relief. Among other things, he claims that the refusal of the district court to appoint counsel was an abuse of discretion; that the district court erred in failing to consider whether the disciplinary action against Caruth violated his first amendment rights to free speech and to seek redress of grievances; that the court's failure to call Polizzi as a witness was error; and that the court erred in failing to consider whether Caruth was punished in violation of the prison regulation requiring charges to be brought within 72 hours of the discovery of the offense. ⁴

II.

The first issue we will address is Caruth's claim that the district court should have appointed counsel to represent him. The following principles provide the framework for our analysis.

There is little doubt that there is no constitutional right to appointed counsel in a civil case. Randall v. Wyrick, 642 F.2d 304, 307 n.6 (8th Cir. 1981); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980); Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); Thomas v. Pate, 493 F.2d 151, 157 (7th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974); Ehrlich v. Van Epps, 428 F.2d 363, 364 (7th Cir. 1970). Federal courts, however, are empowered by statute to appoint counsel when circumstances justify it. Section 1915 of Title 28 of the United States Code authorizes a court to request an attorney to represent a party in a civil action who is proceeding in forma pauperis. ⁵ The decision to appoint counsel for a civil rights litigant rests with the discretion of the trial court. McBride v. Soos, 594 F.2d 610, 613 (7th Cir. 1979); Heidelberg v. Hammer, 577 F.2d 429, 431 (7th Cir. 1978). Only when the denial of counsel results in "fundamental unfairness impinging on due process rights" will a denial of counsel be overturned. La Clair v. United States, 374 F.2d 486, 489 (7th Cir. 1967).

This Court has made it clear, however, that a court's discretion is to be guided by a consideration of all the circumstances of the case and particular emphasis is to be placed upon "certain factors" that have been recognized as highly relevant to a request for counsel. Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981).

Foremost among the "certain factors" that an appointing court must consider is an analysis of the merits of the indigent litigant's claim from both a factual and legal standpoint. Maclin makes clear that a court need not appoint counsel when it considers the indigent's chances of success to be extremely slim. Id. at 887. In addition to the merits of a case, a court may consider any of a number of factors. Among these factors are the complexity of the legal issues presented and the capability of the litigant to recognize and present the issues, the complexity and conflicting nature of the facts, the ability of the litigant to investigate his case, and the relative substantive value of the claims presented. Because each case is unique, a decision to appoint counsel can be made only after the proper legal principles have been applied to the facts presented in each case.

In the immediate case, the district court gave four reasons when it denied Caruth's motion for appointment of counsel:

1. No source of compensation is known for appointed lawyers in civil cases.

2. It is unreasonable to require a lawyer to prosecute a civil case without compensation.

3. Many charitable and civic organizations, such as American Civil Liberties Union, Legal Aid Societies, etc., will provide counsel in civil rights cases which they consider meritorious.

4. Private lawyers often accept cases, which they evaluate as having recovery potential, on a contingent fee basis.

These justifications do not comport strictly with the analysis required by Maclin. The generality of the reasons could apply in any civil case where appointment of counsel has been requested and they seem to indicate that counsel should never be appointed.

The analysis of the district court fails to take into account several factors intrinsically related to the appointment of counsel. First, the court's initial reason for denying appointment...