Porter v. Louisville Jefferson County Metro Government et al

Filing 207

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 1/20/2016, GRANTING 174 Motion to Appoint Counsel. Court has contacted counsel willing to represent Sanders pro bono for the limited purpose of a deposition in conjunctio n with this case. Sanders is to immediately contact Christie A. Moore. Should counsel and Sanders agree that she will represent him, counsel should file a notice of appearance. If not, counsel is to submit a letter so indicating. The Court cautions Sanders that absent a legitimate conflict of interest no other counsel will be requested for him should he decline Ms. Moore's services. cc: Counsel, Juan Sanders (certified mail), Christie A. Moore (certified mail)(RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-829-CRS

KERRY PORTER,

Plaintiff,

v.
LOUISVILLE JEFFERSON COUNTY
METRO GOVERNMENT, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO APPOINT COUNSEL
Before the Court is motion filed by pro se non-party Juan Sanders entitled, “Objections to
Magistrate Judge Findings of Fact, Conclusions of Law” (DN 170). The Court has construed
this motion to function in three different ways: (1) objections1 to the order (DN 163) denying
Sanders’s motion to quash (DN 158); (2) a motion to stay2 the Court’s order (DN 163) directing
Sanders to appear for a deposition; and (3) a motion to appoint counsel3. This order will address
the motion to appoint counsel (DN 174).
BACKGROUND
In an order dated October 7, 2015, the Court denied what it construed as a motion to
quash (DN 158) filed by Sanders and directed Sanders to appear for a deposition on October 14,
2015. (DN 163.) On October 13, 2015 – the day before the deposition was scheduled to go
forward – Sanders filed the motion to appoint counsel. (DN 174.) In the motion to appoint
counsel, Sanders requested that the Court appoint counsel for him for the limited purpose of the
deposition set for October 14, 2015. (DN 170, p. 1.) Also on October 13, 2015, Sanders filed
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Sanders’s objections were docketed as DN 170.
Sanders’s motion to stay was docketed as DN 176.
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Sanders’s motion to appoint counsel was docketed as DN 174.
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objections to the October 7, 2015 order requiring him to appear at his deposition, as well as what
the Court has construed as a motion to stay the Court’s October 7, 2015 order pending a ruling
on his objections by the District Judge. (DN 170; DN 174.)
On October 16, 2015, the Court granted Sanders’s motion to stay the Court’s October 7,
2015 order directing him to appear for the October 14, 2015 deposition. (DN 178.) More
specifically, the October 16, 2015 order stayed Sanders’s deposition pending a ruling by the
District Judge on Sanders’s objections to the October 7, 2015 order. (Id.) On December 18,
2015, the Honorable Charles R. Simpson III overruled Sanders’s objections to the October 7,
2015 order. (DN 199.) As the Court stated in its October 16, 2015 order, “if the District Judge
overrules Sanders’s objections to the October 7, 2015 order, Sanders’s deposition will go
forward at a new date and time set by the Court.” (DN 178, p. 2.) The Court has not set a new
deposition date for Sanders, in part, because Sanders has ostensibly filed an appeal of the District
Judge’s order overruling his objections. (See DN 201, 206.) Nonetheless, the issue of whether
Sanders is entitled to appointment of counsel in any future deposition in connection with this
matter still remains. The Court believes that this is an issue that can be considered separate and
apart from any appeal arising out of the District Judge’s order. Therefore, the Court finds that it
is proper to address the motion to appoint counsel at this time.
DISCUSSION
The Court finds that, while Sanders is not a party to this action, appointment of counsel
for him in this instance is within its authority and is warranted due to exceptional circumstances.
28 U.S.C. § 1915(e)(1) states that the “court may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e) (emphasis added); see also Brubaker v. Barrett,
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801 F. Supp. 2d 743, 763 (E.D. Tenn. 2011) (noting that 28 U.S.C. § 1915(e) makes clear that
courts may request counsel for any person, including plaintiffs and defendants); but cf. Strong v.
Wisconsin, No. 07-cv-86, 2008 WL 4280393, at *1 (W.D. Wis. Feb. 28, 2008) (“Although 28
U.S.C. § 1915(e)(1) is not expressly limited to parties, defendants point to no other case in which
a court has appointed counsel under similar circumstances.”).
While Sanders is not a party to this case, the Court finds that the principles used to
determine whether an indigent party should be appointed counsel in a civil case are instructive.
The Court first notes that appointment of counsel in a civil case is not a constitutional right.
Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993).

Rather, “[i]t is a privilege that is

justified only by exceptional circumstances.” Id. at 606. To determine whether “exceptional
circumstances” exist, courts have examined “the type of case and the abilities of the plaintiff to
represent himself.” Id. (quoting Archie v. Christian, 812 F.2d 250, 253 (5th Cir. 1987)) (internal
quotation marks omitted). “This generally involves a determination of the ‘complexity of the
factual and legal issues involved.’” Id. (quoting Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir.
1986)). The Sixth Circuit has also stated that “the district courts, in considering an application
for appointment of counsel, should at least consider plaintiff's financial resources, the efforts of
plaintiff to obtain counsel, and whether plaintiff's claim appears to have any merit.” Henry v.
City of Detroit Manpower Dep't, 763 F.2d 757, 760 (6th Cir. 1985). The Court’s decision to
deny appointment of counsel is reviewed for abuse of discretion. Lavado, 992 F.2d at 605.
Here, the Court finds that exceptional circumstances exist. For one, Sanders has raised
an objection based on the Fifth Amendment’s privilege against self-incrimination.

“The

Amendment not only protects the individual against being involuntarily called as a witness
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against himself in a criminal prosecution but also privileges him not to answer official questions
put to him in any other proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77
(1973).

While the Fifth Amendment privilege against self-incrimination is not an overly

complicated concept, it implicates a weighty and substantial constitutional interest. See Miranda
v. Arizona, 384 U.S. 436, 460 (1966) (“We have recently noted that the privilege against selfincrimination—the essential mainstay of our adversary system—is founded on a complex of
values . . . . All these policies point to one overriding thought: the constitutional foundation
underlying the privilege is the respect a government—state or federal—must accord to the
dignity and integrity of its citizens.”) (internal citations omitted).

Moreover, once an

incriminating statement is made – intentionally or not – one cannot, as a practical matter, “unring
the bell.”
Second, it appears that Sanders cannot afford counsel. While Sanders did not so attest in
his motion to appoint counsel, he has filed an application and affidavit to proceed without
prepayment of fees with respect to his appeal; the application and affidavit clearly show that he
is indigent. (DN 206.) Sanders’s only source of income is $196.00 of food stamps per month.
(Id. at 4.)
Third, the Court notes the complex and contentious history of this case. It has been
pending in this Court for over three years and is still in the discovery stage. Furthermore, while
the Court is not aware of any criminal charges pending against Sanders for the murder of Tyrone
Camp, the complaint in this civil matter certainly insinuates that Sanders was involved. The
Court believes that requesting counsel to appear on Sanders’s behalf for the limited purpose of

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his deposition not only ensures that Sanders’s constitutional interest is protected, but that the
process is efficient and fair. The Court is hopeful that – with the aid of counsel – Sanders will, to
the extent there are any, answer questions that do not implicate the Fifth Amendment or are not
otherwise objectionable. See In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983) (“A blanket
assertion of the privilege by a witness is not sufficient to meet the reasonable cause requirement
and the privilege cannot be claimed in advance of the questions. The privilege must be asserted
by a witness with respect to particular questions, and in each instance, the court must determine
the propriety of the refusal to testify.”). The Court further believes that having counsel represent
Sanders at a future deposition will ensure that the process runs smoothly so that this case can
move quickly forward to a just and final resolution.
The Court has unearthed one case in which a court has requested counsel for a non-party
witness at a deposition. In Boda v. Phelan, a magistrate judge in the Eastern District of New
York requested pro bono counsel for a non-party, who was a minor, and solely in connection
with plaintiff’s application to take the non-party’s deposition. No. 11-CV-28-KAM-SMG, 2012
WL 3241213, at *6 (E.D.N.Y. Aug. 6, 2012) (“Magistrate Judge Gold only appointed pro bono
counsel to non-party H.B. in April 2012 . . . solely in connection with plaintiff's application to
take H.B.'s deposition . . . .”). The non-party intended to assert her Fifth Amendment privilege at
the deposition. Id. at DN 58 (August 13, 2012 Correspondence from Counsel). The magistrate
judge requested pro bono counsel for the non-party minor because the minor was not represented
and her family lacked the means to afford an attorney. Id. at DN 40 (April 10, 2012 Civil Minute
Entry). While Sanders is not a minor, the other circumstances of Boda are similar to this case.

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Sanders has invoked the Fifth Amendment, cannot afford counsel, and would benefit from the
guidance of counsel during his deposition under the specific circumstances of this case.
CONCLUSION
Accordingly,
IT IS ORDERED the motion to appoint counsel (DN 174) is GRANTED.
While the Court cannot compel any attorney to accept a civil case pro bono, see Mallard
v. United States District Court, 490 U.S. 296 (1989), it has contacted counsel willing to represent
Sanders pro bono for the limited purpose of a deposition in conjunction with this case. Sanders
should immediately contact:
Christie A. Moore
Bingham Greenebaum Doll
3500 National City Tower
101 South Fifth Street
Louisville, KY 40202
502-587-3758
Should counsel and Sanders agree that she will represent him in any future deposition, counsel
should file a notice of appearance; if not, the Court requests that counsel submit a letter so
indicating. The Court cautions Sanders that absent a legitimate conflict of interest no other
counsel will be requested for him should he decline Ms. Moore’s services.

January 20, 2016

Colin Lindsay, MagistrateJudge
United States District Court

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cc:

Counsel of record
Non-party Juan Sanders (via certified mail)
2317 W. Hill Street.
Louisville, KY 40210
Christie A. Moore (via certified mail)
Bingham Greenebaum Doll
3500 National City Tower
101 South Fifth Street
Louisville, KY 40202

Appeal of this Order is subject to the terms and time limitations of Fed. R. Civ. P. 72(a) and
Local Rule 72.2.

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