Sullivan v. Core Civic et al

Filing 26

ORDER denying 24 Motion to Stay/Plaintiff's appeal of the Magistrate Judge's Order denying counsel, and affirms 22 Magistrate Judge's Order denying counsel. Signed by Judge Dudley H. Bowen on 11/30/2017. (jlh)

FILED
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

DUBLIN DIVISION

MARIO ROMAN SULLIVAN,

*

Plaintiff,

2011 NOV 30 P 2= 23

ri FPK A Wr^W

*
*

V.

*

CV 317-017

•k

CORE CIVIC, Wheeler Correctional*
Facility; VANCE LAUGHLIN,
*
Warden; GLYNN POWELL, Unit
*
Manager; PAT CLARK, HAS; and NP *
HALL,

*
*

Defendants.

*

ORDER

Before the Court is Plaintiff Mario Roman Sullivan's

appeal of the Magistrate Judge's Order denying counsel. {Doc.
No. 24.)

For the reasons set forth below, the Court AFFIRMS

the Magistrate Judge's Order.

Like the general public, prisoners do not have a right to
appointed counsel in civil disputes. Kilgo v. Ricks, 983 F.2d
189, 193 (11th Cir. 1993) .

The appointment of counsel in

civil actions is in the court's discretion and reserved for

exceptional circumstances.
1216 (11th Cir. 1992).

Dean v. Barber. 951 F.2d 1210,

To decide whether appointment is

appropriate, courts will consider (1) the complexity of the
case; (2) whether the prisoner is in a position to do his own
investigation; (3) whether the prisoner is able to present the
merits of his case; and (4) whether the evidence will largely

consist of conflicting testimony, so as to require skill for

presenting evidence and cross-examination.

See Ulmer v.

Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (adopted in
Fowler V. Jones, 899 F.2d 1088, 1096 (11th Cir.1990)).

As the Magistrate Judge held, this case is not complex.
Plaintiff's reliance on Aoyeman v. Corrections Corp. of Am.,
390 F.3d 1101, 1103 (9th Cir. 2004) is unconvincing.

Agyeman

was complicated by the plaintiff's inability to join all
defendants in one action and his rights as an immigrant being

held on non-criminal charges, which expanded the plaintiff's

rights beyond those of a normal prisoner.

Id. at 1103-04.

Plaintiff has no special status that complicates this case,

and

he

can

bring

his 42 U.S.C.

§ 1983 claims

against

individual and corporate defendants in one action. See Ancata
V. Prison Health Servs.. Inc.. 769 F.2d 700, 704 (11th Cir.

1985) (finding that a corporation can be held liable under §
1983

if

it

performs

traditionally

state

functions).

Accordingly, Plaintiff's complaint is not too complex to be
handled pro se.

Plaintiff also argues that his retaliation claim makes
the

rest

of

his

case

appointment of counsel.

sufficiently

complex

to

justify

For support. Plaintiff cites to

Swofford V. Mandrell, 969 F.2d 547, 552 (7th Cir. 1992), which

held that a retaliation case involves complex issues that can

justify appointing counsel. However, the Eleventh Circuit has
not made a similar finding.

On the contrary, in McKissick v.

Cgmmlr, 587 F. App'x 567, 573 {11th Cir. 2014), the Eleventh
Circuit affirmed a district court's finding that a retaliation

complaint

was

not

complex.

This

is

not

to

say

that

retaliation cases may never be complex, but here. Plaintiff
has not demonstrated that the complexity of his case supports
appointing counsel.
Plaintiff

unable

to

has also failed

conduct

to demonstrate

his own investigation.

that he is

The

obstacles

Plaintiff claims prevent him from investigating his case are
the kind that would be common for any prisoner litigant.

For

example. Plaintiff's confinement makes finding witnesses and
taking their statements more difficult.
hardship

were

sufficient,

many

appointed counsel in civil cases.

more

If this kind of

prisoners

would

be

Additionally, Plaintiff's

previous motions that set out the facts of his case belie
claims that he is unable to do his own investigation.

The barriers Plaintiff claims prevent him from arguing
the merits of his case are also conditions that are common to

many prisoners.

While a prisoner's lack of education and

mental health issues may be burdens, they are not burdens that

convince

the

Court

that

counsel

should

be

appointed.

Additionally*/ considering his past filings, the Court is
convinced

that

Plaintiff's

mental

health

and

educational

disadvantages will not prevent him from presenting the merits
of his case.

Finally, Plaintiff has not demonstrated that his case
will involve a great deal of conflicting testimony that will
require

counsel

examination.

to

present

evidence

and

conduct

cross-

Plaintiff's only support for this argument is

that his case involves medical care, which could entail hiring

an expert witness and cross examination.

The evidentiary

complexities Plaintiff identifies are the kind present in
nearly any civil case.

Upon the foregoing, the Court DENIES Plaintiff's appeal
(doc. no. 24) and AFFIRMS the Magistrate Judge's Order (doc.
no. 22) denying counsel.

ORDER ENTERED at Augusta, Georgia, this

day of

November, 2017.

UNITED STATES DISTRICT JUDGE