Mayo v. Bentley et al (INMATE 2)
ORDER ON MOTION denying 33 Renewed Motion for Appointment of Counsel as further set out in the order. Signed by Honorable Judge Susan Russ Walker on 8/26/2011. (dmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
DAVID LEE MAYO, #241 618
ROBERT BENTLEY, et al.,
ORDER ON MOTION
Pending before the court is Plaintiff’s third request for appointment of counsel.
Attached to Plaintiff’s motion is a copy of a neuropsychological consultation performed on
Plaintiff in January 2005 at the request of his attorney for purposes of evaluating his
cognitive function and abilities in regard to Plaintiff’s upcoming criminal trial. (Doc. No. 33,
Attachment.) Plaintiff maintains that the neuropsychological examination reflects that he is
borderline mentally ill. (Id.) He further states that the inmate assisting him in this matter
has been transferred, he cannot afford to hire an attorney, and he cannot adequately articulate
the facts of his case on his own. (Id.)
Congress has not specifically authorized courts to appoint counsel for plaintiffs
proceeding under 42 U.S.C. § 1983. “The appointment of counsel is instead a privilege that
is justified only by exceptional circumstances. . .” Poole v. Lambert, 819 F.2d 1025, 1028
(11th Cir. 1987). “[W]hether such circumstances exist is . . . committed to district court
discretion.” Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996). Exceptional circumstances
exist “where the facts and legal issues are so novel or complex as to require the assistance
of a trained practitioner.” Poole, 819 F.2d at 1028.
The court has carefully reviewed Plaintiff’s request for appointment of counsel and
the report of Plaintiff’s 2005 neuropsychological report attached thereto. From that review,
the court concludes that Plaintiff has not sufficiently demonstrated any impairment such that
he is unable to present the essential merits of his position in this matter to the court. See
Kilgo, 983 F.2d at 193. See e.g., Warren v. Harrison, 244 Fed. Appx. 831, 832 (9th Cir.
2007) (holding that an inmate plaintiff who had alleged mental illness did not qualify for
appointment of counsel because he competently presented his claims and attached three
pertinent exhibits). Moreover, the instant action does not present any novel or complex
issues of fact or law so as to require the appointment of counsel. See Dean v. Barber, 951
F.2d 1210, 1216 (11th Cir. 1992) (“We cannot say the issues in this case are so novel or
complex that the district court abused its discretion in declining to appoint counsel.”).
In light of the foregoing, it is
ORDERED that the renewed motion for appointment of counsel (Doc. No. 33) be and
is hereby DENIED.
DONE, this 26th day of August 2011.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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