Discretion and Limits in Recruiting Pro Bono Counsel Under §1915(e) in Civil Rights Litigation

1. Introduction

Lazerek Austin v. Cheryl Hansen is a Seventh Circuit decision addressing for the first time, in a precedential opinion, the extent of a district court’s discretion—and its practical limits—when attempting to recruit pro bono counsel under 28 U.S.C. §1915(e)(1) in a civil rights action. Plaintiff-Appellant Lazerek Austin, a state prisoner proceeding pro se, sued three medical providers under 42 U.S.C. §1983, alleging Eighth Amendment deliberate indifference to serious medical needs. After nearly three years of litigation, the district court, having been unable to secure volunteer counsel, concluded that continued recruitment efforts would be futile and that Austin was competent to proceed pro se. The court then granted summary judgment to the defendants. Austin appealed, arguing that the court abused its discretion by terminating its search for counsel. The Seventh Circuit affirms.

2. Summary of the Judgment

The Seventh Circuit’s opinion, authored by Judge Hamilton, holds:

There is no federal right to appointed counsel in civil litigation, only a limited power to recruit pro bono counsel.
District courts are not required to search for volunteer attorneys indefinitely when reasonable recruitment efforts prove unsuccessful.
After unsuccessful recruitment, the court must assess the plaintiff’s ability to litigate pro se using the two-step Pruitt framework:

Whether the plaintiff made a reasonable attempt to find counsel on their own.
Whether the complexity of the case exceeds the plaintiff’s ability to litigate.

The district court in this case made diligent recruitment efforts (contacting attorneys, bar associations, etc.), found continued efforts futile, and reasonably concluded that Austin could competently proceed without counsel.
Because the district court applied the correct legal standard and reached a decision supported by the record, the Seventh Circuit affirms.

3. Analysis

3.1 Precedents Cited

Mallard v. United States District Court (490 U.S. 296, 1989): Held that §1915(e)’s predecessor does not authorize coercive appointments of counsel—courts may only request a volunteer.
Watts v. Kidman (42 F.4th 755, 2022): Confirmed that courts may consider the perceived merits of an indigent plaintiff’s claims when allocating the scarce resource of volunteer attorneys.
Wilborn v. Ealey (881 F.3d 998, 2018): Recognized the difficulty of finding pro bono counsel, especially outside major metropolitan areas, and that indefinite searching is not required.
Pruitt v. Mote (503 F.3d 647, 2007, en banc): Established the two-step test for recruiting counsel in civil cases under §1915(e): (1) plaintiff’s reasonable attempt to secure counsel on their own, and (2) plaintiff’s ability to litigate.
McCaa v. Hamilton (959 F.3d 842, 2020): Emphasized that district court discretion in recruitment should account for local realities and resource constraints.
Giles v. Godinez (914 F.3d 1040, 2019): Advised that if recruiting counsel proves impossible, courts should consider extending discovery or other relief to assist pro se litigants.
Mejia v. Pfister (988 F.3d 415, 2021): Discussed common obstacles faced by pro se prisoners in civil rights actions.
Ealy v. Watson (109 F.4th 958, 2024): Reinforced the need for an individualized, practical inquiry into a litigant’s competence to proceed pro se.
Roberts v. Neal (713 Fed. App’x 509, 2018): Non-precedentially held that, after reasonable efforts, a court may cease “beating the bushes” for counsel.

3.2 Legal Reasoning

The court’s reasoning rests on two foundational principles:

No Right to Counsel in Civil Cases: Unlike criminal proceedings, civil litigants have no constitutional or statutory right to appointed counsel. Section 1915(e) allows only for the recruitment of volunteer attorneys.
District Court Discretion and Practical Constraints: Recruitment efforts must be reasonable, but courts need not—and cannot—search indefinitely when volunteers are unavailable. The scarcity of pro bono resources, especially in districts with high volumes of pro se filings, informs the discretion courts exercise.

Applying the Pruitt framework, the district court:

Verified that Austin had personally sought representation.
Documented extensive recruitment efforts by the clerk’s office, reaching out to hundreds of attorneys.
Concluded that further efforts would be futile given the persistent lack of volunteers.
Examined the complexity of Austin’s Eighth Amendment deliberate-indifference claim and Austin’s demonstrated litigation skills (motion practice, fact presentation, legal research) and found him competent to proceed.

3.3 Impact

This decision will guide district courts in §1983 and other civil cases involving pro se indigent plaintiffs:

It clarifies that recruitment efforts, though important, are not boundless—courts may cease after reasonable attempts.
It underscores the necessity of a thorough Pruitt analysis before denying further recruitment and requiring pro se continuation.
It balances plaintiffs’ need for counsel against the reality of limited pro bono resources, promoting judicial efficiency.
Future litigants will better understand the standard applied and can tailor their own recruitment efforts and arguments to the two-step test.

4. Complex Concepts Simplified

‘Recruitment’ vs. ‘Appointment’: Courts may ask volunteer lawyers to represent indigent plaintiffs; they cannot force them.
§1915(e)(1): The statute empowering courts to recruit counsel for indigent litigants who cannot pay fees or costs.
Pruitt Two-Step Test:
1. Has the plaintiff made reasonable attempts to find counsel?
2. Can the plaintiff competently handle the case’s legal and factual complexities?
Summary Judgment: A procedural device allowing the court to decide a case when no genuine dispute of material fact exists and a party is entitled to judgment as a matter of law.
Deliberate Indifference: Eighth Amendment standard requiring proof that prison officials knew of and disregarded an excessive risk to inmate health or safety.

5. Conclusion

Lazerek Austin v. Cheryl Hansen establishes a clear, practical precedent: district courts have finite duties when recruiting pro bono counsel under §1915(e). After reasonable, documented efforts fail, courts need not recruit attorneys indefinitely. They must, however, conduct a principled, individualized inquiry into the plaintiff’s efforts and competence under Pruitt. In affirming the district court’s decision, the Seventh Circuit balances the rights of indigent litigants with the realities of scarce pro bono resources, providing lower courts and pro se plaintiffs with essential guidance on managing civil litigation in resource-constrained environments.