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
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