Barnum v. Welch et al

Filing 13

ORDER AND REASONS denying 10 Motion to Appoint Counsel. Plaintiff's motion to appoint counsel is denied, as set forth herein. Signed by Judge Lance M Africk on 08/29/2024. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES C. BARNUM, JR.

CIVIL ACTION

VERSUS

No. 24-203

MARK ALAN WELCH, ET AL.

SECTION I

ORDER & REASONS
Before the Court is pro se plaintiff James C. Barnum’s (“plaintiff”) motion 1 to
appoint counsel. Plaintiff, proceeding in forma pauperis, 2 filed a civil complaint
pursuant to 42 U.S.C. § 1983 alleging torture and cruel and unusual punishment in
violation of the Eighth Amendment of the U.S. Constitution as well as violations of
the Racketeer Influenced and Corrupt Organizations Act. 3 The Court previously
dismissed 4 plaintiff’s case without prejudice when no one appeared at a hearing after
the Court issued an order 5 to show cause why the action should not be dismissed for
failure to serve the defendants.
Plaintiff now moves 6 for the Court to appoint counsel to represent him in his
civil case. In the motion, he states that he has tried on two occasions to file paperwork
with the U.S. Marshals Service to have the defendants served, but those attempts

R. Doc. No. 10.
R. Doc. No. 3.
3 R. Doc. No. 1, at 3.
4 R. Doc. No. 9.
5 R. Doc. No. 8.
6 R. Doc. No. 10.
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have been to no avail. 7 He further states that he is in custody and that he is therefore
unable to go to the U.S. Marshals Service office in an effort to ensure that the
defendants are served. 8 For the reasons that follow, the Court denies plaintiff’s
motion.
While there is no right to appointment of counsel in civil cases, “a district court
may appoint counsel if doing so would aid in the efficient and equitable disposition of
the case” where a litigant is proceeding in forma pauperis. Delaughter v. Woodall, 909
F.3d 130, 140 (5th Cir. 2018) (quotation and citation omitted). Appointment of counsel
is reserved for “exceptional circumstances.” Id. at 141. While what amounts to
exceptional circumstances is not easily defined, courts consider “(1) the complexity of
the case; (2) whether the litigant is capable of adequately presenting his case; (3)
whether the litigant is in a position to investigate adequately 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.” Id. at 140–41 (quoting

Id. at 1. Plaintiff issued a summons to five defendants. See R. Doc. No. 4. The first
summons as to Jacob Lee and University Medical Center were returned unexecuted
because no address was provided. R. Doc. No. 6. The summons as to A
Mukhopadhyay, Mark Alan Welch, and Anne Scruggs were returned unexecuted
because they could not be located at the listed clinic address, and legal counsel would
not accept service. R. Doc. No. 7. A second summons as to Jacob Lee was returned
unexecuted because he did not work at the listed address. R. Doc. No. 11. A second
summons as to University Medical Center was returned as executed successfully. R.
Doc. No. 12. However, the University Medical Center summons was not executed
until July 26, 2024—roughly a month after plaintiff’s case was dismissed without
prejudice on June 27, 2024. See R. Doc. No. 9 (order dismissing case without
prejudice); R. Doc. No. 12 (summons as to University Medical Center returned
executed).
8 R. Doc. No. 10, at 1.
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Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)).
Considering these factors, the Court in its discretion finds that appointing
counsel for plaintiff is not warranted at this time. Aside from the difficulty
effectuating service on the defendants, plaintiff has given this Court no reason why
it should conclude that exceptional circumstances warrant appointing an attorney.
Plaintiff has not provided this Court with a reason to conclude that his case is
especially complex, that plaintiff is incapable of adequately representing his case, or
that the evidence consists in large part on conflicting testimony which will require
someone who has the skills to present evidence and cross examine a witness. While
plaintiff does state that he is in custody, plaintiffs in custody frequently represent
themselves pro se while asserting claims pursuant to § 1983. See, e.g., James v.
Gonzalez, 348 F. App’x 957, 958 (5th Cir. 2009) (affirming a district court denial of a
motion to appoint counsel in a § 1983 case filed by an incarcerated, pro se litigant
because all exceptional circumstances asserted were “common elements in civil rights
cases”).
Indeed, plaintiff has other means of effectuating service on defendants without
necessitating an attorney or the ability to visit the U.S. Marshals Service office.
Pursuant to Federal Rule of Civil Procedure 4(c)(3), upon request by the plaintiff, a
court must order that “service be made by a United States marshal or deputy marshal
or by a person specially appointed by the court” when, like in this case, the plaintiff
is proceeding in forma pauperis. A court under these circumstances must order the
requested service, provided that plaintiffs must still take “reasonable steps to identity

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the defendant(s).” Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996).
Notwithstanding the availability of Rule 4(c)(3), because his case has been
dismissed without prejudice, plaintiff must either refile his complaint or file a motion
with the Court to reopen the above-captioned case before he can effectuate service on
the defendants. Once his case has been refiled or reopened, the plaintiff may
effectuate service on identified defendants upon proper motion to this Court, and he
should not require an attorney to do so. Accordingly,
IT IS ORDERED that that plaintiff’s motion to appoint counsel is DENIED.
New Orleans, Louisiana, August 29, 2024.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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