LaVergne v. Stutes et al

Filing 127

ORDER : The 108 MOTION to Withdraw is GRANTED. The 107 MOTION to Appoint Counsel is DENIED and MOTION to Return Filing Fee is withdrawn. Signed by Judge John W. deGravelles on 3/10/2022. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BRANDON S. LAVERGNE (# 424229)

CIVIL ACTION

VERSUS

NO. 17-1696-JWD-EWD

KEITH STUTES, ET AL.
Consolidated with:
BRANDON S. LAVERGNE (# 424229)

CIVIL ACTION

VERSUS

NO. 18-693-JWD-EWD

KEITH STUTES, ET AL.
ORDER
This matter comes before the Court on Plaintiff’s Motion to Appoint Counsel and Return
Filing Fee and Motion to Withdraw (R. Docs. 107 and 108).
First, with regards to the plaintiff’s request for the appointment of counsel, the pro se
Plaintiff, an inmate currently confined at the Louisiana State Penitentiary, Angola, Louisiana,
filed this proceeding pursuant to 42 U.S.C. § 1983 against numerous defendants complaining that
his constitutional rights were violated due to the imposition of an illegal sentence, and due to his
classification resulting from the illegal sentence. The Court has the authority to “request” an
attorney to represent the plaintiff under 28 U.S.C. § 1915(e)(1), and the extra-statutory authority
to order an attorney to do so in rare circumstances. Naranjo v. Thompson, 809 F.3d 793, 804 (5th
Cir. 2015). A civil rights complainant has no right to the automatic appointment of counsel.
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). A district court may appoint counsel “if
doing so would advance the proper administration of justice,” Jackson v. Cain, 864 F.2d 1235,
1242 (5th Cir. 1989), but appointment of counsel is not required “unless the case presents

exceptional circumstances.” Ulmer, 691 F.2d at 212. In determining whether exceptional
circumstances warrant the appointment of counsel, a district court should consider (1) the type
and complexity of the case; (2) the indigent’s ability to adequately present the case; (3) the
indigent’s ability to investigate the case adequately; and (4) the existence of contradictory
evidence and the necessity for skill in the presentation of evidence and in cross-examination. Id.
at 213.
In the instant case, the Court finds that “exceptional circumstances” requiring the
appointment of counsel are not apparent at this time. The issues herein have been narrowed by
the Fifth Circuit Court of Appeals (see R. Doc. 110) and are neither factually nor legally
complex. No other factors in Ulmer are found to require the appointment of counsel. Plaintiff has
set out the factual basis for his claims in his Complaint, as amended, and this pleading and others
reflect that Plaintiff understands the proceedings and can address the issues presented. The
parties are engaged in discovery and the plaintiff can use these materials to cross-examine
Defendants and prepare for trial.
Additionally, it does not appear that any great skill will be needed to cross-examine the
witnesses in connection with the issues in this case. Pro se plaintiffs are given great flexibility in
the examination of witnesses, and Plaintiff has adequately presented his case thus far.
Further, to the extent that Plaintiff asserts that he has a limited knowledge of the law, this
is true of nearly every prisoner who prosecutes a pro se lawsuit. For this reason, pro se pleadings
are held to less stringent standards than formal pleadings drafted by attorneys. Haines v. Kerner,
404 U.S. 519 (1972). This Court is liberal in reviewing the pleadings and motions filed by pro se
inmates pursuant to § 1983, giving inmates ample opportunity to amend if necessary and
granting extensions of time to comply with Court Orders.

Accordingly, in light of the Court’s liberal construction of prisoner § 1983 pleadings and
motions, coupled with the lack of complexity of the legal issues in this case, together with
Plaintiff’s apparent ability to litigate this action pro se, the Court finds that the appointment of
counsel would be of marginal service to the Court in this case and would not significantly assist
Plaintiff in the examination of the witnesses or in the sharpening of the issues for trial. Therefore,
having considered the factors set forth in Ulmer, supra, the Court finds that the appointment of
counsel is not required or warranted in this case.
Now, considering the plaintiff’s Motion to Withdraw (R. Doc. 108), wherein the plaintiff
requests to withdraw his request in Record Document 107 for the return of his filing fee, this
Motion (R. Doc. 108) will be granted. Accordingly,
IT IS ORDERED that the plaintiff’s Motion to Withdraw (R. Doc. 108) is GRANTED,
and the plaintiff’s request for return of his filing fee in Record Document 107 is withdrawn.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel (R. Doc. 107)
be and is hereby DENIED.
Signed in Baton Rouge, Louisiana, on March 10, 2022.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA