This Note evaluates the circuit split regarding the provision of counsel in prisoner civil rights cases and proposes a uniform test. Part I describes the historical background of the right to counsel and prisoner litigation in the United States. Part II outlines the current circuit split regarding § 1915(e)(1). Part III explains why all district courts should consider merit and substance, using a case study to illustrate the deficiencies of non-merit-based tests. Part IV demonstrates why merit and substance are the best metrics for deciding when to provide counsel. Ultimately, this Note asserts that all district judges should consider: (1) the merit of the claim; (2) what is at stake in the litigation; (3) whether the plaintiff has made a reasonable attempt to secure counsel on his own; and (4) whether the plaintiff appears competent to litigate the matter himself given the difficulty of the case.
John R. FitzGerald,
Non-Merit-Based Tests Have No Merit: Restoring District Court Discretion Under § 1915(e)(1),
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol93/iss5/13