PORTER v. DOUGLAS, et al

Filing 70

ORDER re 2 , 19 MOTION to Appoint Counsel filed by DWIGHT J PORTER are reconsidered sua sponte and granted to extent the the Court will publish on the Court's website a request for counsel to assist Plaintiff in this case. Clerk directed to publish on the United States District Court for the Northern District of Floridas website an announcement pertaining to this case, regarding Plaintiffs request for the assistance of counsel. Signed by MAGISTRATE JUDGE GARY R JONES on 3/12/2013. (jws)(Contacted IT.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
DWIGHT J. PORTER,
Plaintiff,
v.

Case No.: 5:10-cv-206-RS-GRJ

COLONEL BAXTER ,et al.,
Defendants.
____________________________/
ORDER
This prisoner civil rights case is before the Court on Plaintiff’s Third Amended
Complaint under 42 U.S.C. § 1983. (Doc. 25.) The case has been set for trial before
District Judge Richard Smoak on June 24, 2013. (Doc. 69.) Plaintiff previously
requested that the Court appoint counsel to represent him in this case, Docs. 2 and 19,
and those requests were denied. (Docs. 16 and 20.) In light of the fact that the case
has now been set for trial, the Court finds that it is appropriate to sua sponte reconsider
its earlier rulings with respect to the issue of counsel.
While a plaintiff in a civil case has no constitutional right to counsel, a “court may
request an attorney to represent any person unable to afford counsel,” subject to the
Court’s discretion. 28 U.S.C. § 1915(e)(1); Bass v. Perrin, 170 F.3d 1312 (11th Cir.
1999). Only exceptional circumstances warrant such a request, such as when a case
presents “novel or complex” facts or legal issues that require the assistance of a trained
practitioner. Bass, 170 F.3d at 1320. In determining whether “exceptional
circumstances” warrant appointment of counsel, the Court may consider various
factors, including: (1) the type and complexity of the case, (2) whether the indigent is

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capable of adequately presenting his case, (3) whether the indigent is in a position to
adequately investigate the case, and (4) whether the evidence will consist in large part
of conflicting testimony so as to require skill in the presentation of evidence and in
cross-examination. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982) (cited with
approval in Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.1990)).
Plaintiff in this case is a prisoner in the custody of the Florida Department of
Corrections, at Calhoun Correctional Institution. He claims that after writing grievances
related to being forced to work beyond his physical abilities, Defendants—all
correctional officers at the prison—physically assaulted him. He claims that after this
incident, Defendants threatened to beat him to death if he filed additional grievances.
While the Court previously determined that Plaintiff did not require the assistance of an
attorney at the discovery stage, the Court now finds that on the eve of trial, Plaintiff
would be better served by legal representation. This is particularly true in light of
Plaintiff’s claim that he has deficiencies in his eyesight, stutters, and has “extreme
difficulties in oral communication.” (Doc. 19, at 2.)
Plaintiff is advised that under 28 U.S.C. § 1915(e)(1), the Court may request
representation for Plaintiff, but the Court may not compel an attorney to take Plaintiff’s
case and the Defendant is not entitled to appointment of counsel at government
expense. Accordingly, Plaintiff’s motions for appointment of counsel, Docs. 2 and 19,
may be granted to the degree that efforts will be made to secure representation for
Plaintiff. Plaintiff must be aware, however, that there is no guarantee that an attorney
will agree to take the case.

Case No: 5:10-cv-206-RS-GRJ

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Accordingly, it is ORDERED:
1. Plaintiff’s motions for appointment of counsel, Docs. 2 and 19, are
reconsidered sua sponte and granted to the extent that the Court will publish on
the Court’s website a request for counsel to assist Plaintiff in this case.
2. The Clerk is directed to publish on the United States District Court for the
Northern District of Florida’s website an announcement pertaining to this case,
regarding Plaintiff’s request for the assistance of counsel.
DONE AND ORDERED this 12th day of March 2013.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 5:10-cv-206-RS-GRJ