Zarnes v. Rhodes
| Decision Date | 24 August 1995 |
| Docket Number | No. 94-2185,94-2185 |
| Citation | 64 F.3d 285 |
| Parties | Marina ZARNES, Plaintiff-Appellant, v. Randall RHODES, Sergeant # 402, Officer of the Sheriff's Department, Don M. Lamb, U.S. Marshal Service, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patrick J. Lamb, Paul A. Haskins (argued), Katten, Muchin & Zavis, Chicago, IL, for Marina Zarnes.
Patrick J. Londrigan, Heyl, Royster, Voelker & Allen, Springfield, IL, Karen L. Kendall, Brad A. Elward (argued), Heyl, Royster, Voelker & Allen, Peoria, IL, for Randall Rhodes.
James A. Lewis, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Springfield, IL, for Don M. Lamb.
Before COFFEY, FLAUM, and MANION, Circuit Judges.
Marina Zarnes, presently incarcerated in a federal penitentiary in California, appeals from the district court's dismissal of two of her claims and grant of summary judgment on her remaining claims, all brought under 42 U.S.C. Sec. 1983, against defendant Randall Rhodes alleging deprivations of her due process rights while a pre-trial detainee at the Sangamon County, Illinois, Jail. Zarnes also appeals from the court's denial of her motion for appointment of counsel. We now affirm all of the court's rulings except its dismissal of Zarnes's claim alleging knowing endangerment, on which we reverse and remand.
On July 14, 1989, Marina Zarnes was indicted on federal drug charges and, pursuant to an agreement between the United States Marshall's Service and the Sangamon County Sheriff's Department, was housed at the Sangamon County Jail pending trial. On January 15, 1990, Zarnes argued with other inmates about the selection of the television channel. The fight did not include any physical contact, but upon hearing from one inmate that Zarnes was to blame, Rhodes, the guard in charge at the time, placed Zarnes in "lock-down." He did not then give Zarnes any reason for his action.
Zarnes remained segregated from the general population for nineteen days without receiving any explanation other than a pre-printed form stating:
In that you are an inmate ... under a PRE-TRIAL DETAINEE status, ... it has been determined that your conduct within the confines of General Population Housing Unit is unacceptable.
Authority of this change in your status, is warranted without the 'Due-Process' clauses of a Hearing before the Disciplinary Council of this facility because of your non-convicted disposition and the fact that your presence in a General Population Unit, gives cause for the safety of other Inmates, the Staff and/or the security of this facility.
Zarnes shared a segregation cell with Cathy Crowder, a mentally-ill inmate. On Zarnes's second day, Crowder physically attacked Zarnes, knocking her off her bunk, hitting her head against the concrete wall, and kicking her. Zarnes suffered injuries to her head and back that continue to cause her pain.
After the assault, guards took Zarnes to a hospital where she was treated. Upon returning to the jail, Zarnes continued to complain of pain and was given pain relievers several times during that night and the next day. Zarnes then notified defendant United States Marshall Don Lamb of her persistent pain. Lamb ordered two marshals to transport Zarnes to the hospital where x-rays were taken, although not of her head.
Eventually, Zarnes was convicted and sentenced on various federal drug charges. See United States v. Zarnes, 33 F.3d 1454 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2286, 132 L.Ed.2d 288 (1995). On December 6, 1991, Zarnes filed a pro se complaint against Rhodes, Lamb, and twenty unnamed defendants. She alleged that Rhodes had placed her in lock-down for punitive reasons and without a hearing in violation of her right to due process. Zarnes further asserted that Rhodes had violated her due process rights by knowingly endangering her safety and by failing to provide adequate medical care after Crowder's assault. Zarnes also brought the latter claim against Lamb.
On October 20, 1992, the district court granted Zarnes's motion to amend her complaint 1 and then dismissed the claims against Rhodes. On May 5, 1993, the court sua sponte reinstated Zarnes's claim alleging placement in segregation without due process. Rhodes subsequently filed a motion to dismiss that the court converted to a motion for summary judgment. The court forwarded this motion to Zarnes in California, where she was incarcerated, giving her fourteen days from the day it was sent in which to respond. Zarnes prepared a motion for an extension of time but mailed it to the United States Attorney instead of the court. One day after her response was due but not filed, May 6, 1994, the district court granted summary judgment for Rhodes. The court had previously granted summary judgment for Lamb on October 26, 1993, finding that Zarnes could not prove he was responsible for any constitutional violation. Zarnes appealed and we appointed counsel to represent her in her appeal.
Zarnes first challenges the district court's refusal to appoint her counsel. She next asserts that she adequately stated due process claims of knowing endangerment and indifference to her serious medical needs. Finally, Zarnes argues that the court erroneously granted summary judgment for Rhodes on her claims concerning her placement in segregation without due process.
Civil litigants do not have a right, either constitutional or statutory, to counsel. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.1992). Section 1915(d), however, grants district courts the discretion to request counsel to represent indigents in appropriate cases. 28 U.S.C. Sec. 1915(d). We review the court's decision not to appoint counsel for an abuse of discretion and will only reverse when that denial amounts to a violation of due process. Jackson, 953 F.2d at 1072.
As a threshold matter, a litigant must make a reasonable attempt to secure private counsel. Id. at 1072-73. Before filing her motion for counsel, Zarnes had made no such effort. After the court denied her motion, Zarnes contacted several attorneys. The court denied her motion for reconsideration after finding that Zarnes's endeavors were not reasonable because the lawyers she solicited were either not licensed to practice in Illinois or did not practice criminal law. Zarnes then contacted three attorneys from Springfield, Illinois, who all declined to take her case. The court again denied her motion.
In our view, Zarnes made a reasonable attempt to hire an attorney to represent her. After learning that she needed to try to retain counsel, Zarnes made persistent efforts toward that end. At the time, she was incarcerated 2,000 miles away and had no access to a Springfield telephone directory. She therefore could not be expected to obtain easily the names of available attorneys. Given the circumstances her effort was sufficient.
After meeting this threshold burden, the plaintiff must demonstrate that her case is one appropriate for the appointment of counsel. In Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.1981), we set out a nonexhaustive list of five factors for courts to consider when deciding such a motion: (1) the merits of the plaintiff's claims; (2) whether the plaintiff can investigate crucial facts; (3) whether trained counsel will better expose the truth; (4) the plaintiff's ability to present the case; and (5) the complexity of the relevant legal issues. More recently, however, we stated that "the necessary inquiry is simpler than Maclin 's multi-factorial approach implies; given the difficulty of the case, [does] the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel [make] a difference in the outcome?" Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 438, 126 L.Ed.2d 372 (1993). Thus, courts now have an alternative, easier method for deciding these motions, one that we now employ.
Zarnes's claims were not so complex as undisputedly to require counsel. In Swofford v. Mandrell, 969 F.2d 547, 552 (7th Cir.1992), the plaintiff alleged a due process violation for placing him in a cell with ten other inmates who subsequently beat him. There, we reversed the court's decision to deny counsel because of the "difficult and subtle question of the state of mind required [to prove] a Fourteenth Amendment violation." Id. at 552. We did not, however, dictate the automatic appointment of counsel whenever a litigant alleges a violation of due process. While Swofford involved a claim similar to Zarnes's allegations, here it appeared from her pleadings that Zarnes understood the elements of her claims and the legal authority supporting them. See Barnhill v. Doiron, 958 F.2d 200, 203 (7th Cir.1992). Zarnes also recognized relevant facts and accordingly attached letters from other inmates attesting to Crowder's mental illness and sought a copy of the jail's policies and procedures. These efforts demonstrate Zarnes's ability to investigate the underlying facts despite her incarceration in California, as well as her apparent ability to present her claims. Zarnes's counsel on appeal maintains that Zarnes has a problem understanding English, but the court also spoke with Zarnes by telephone, and we credit its view of her proficiency over that of her counsel. 2
Were we to have had the responsibility for original decision on Zarnes's motion, we may have chosen to appoint counsel to represent her after she attempted and failed to retain a private attorney. That is not our role, however, and we cannot hold that the aspects of this case that may trouble us--Zarnes's imprisonment far from Illinois and the fact that she received help from other inmates to prepare her pleadings--always compel appointment of counsel. We conclude that the court did not abuse its discretion in determining that Zarnes was capable of litigating her claims. 3
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