Brumfield v. Natchitoches Parish Detention Center et al

Filing 40

MEMORANDUM ORDER denying 36 Motion for Assistance. Signed by Magistrate Judge Joseph H L Perez-Montes on 9/29/2017. (crt,ThomasSld, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

c

SECTION P

ALAN VIRGIL BRUMFIELD,
Plaintiff

CIVIL ACTION NO. 1:15-CV-01883

VERSUS

JUDGE JAMES T. TRIMBLE, JR.

NATCHITOCHES PARISH
DETENTION CENTER, ET AL.,
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a “Motion for Assistance” (Doc. 36) filed by pro se plaintiff
Alan Virgil Brumfield (“Brumfield”). Brumfield seeks appointment of counsel to
assist him in filing a petition for a writ of certiorari to the United States Supreme
Court, or a transfer to a facility with an “adequate law library and legal assistance.”
(Doc. 36).
I.

Request for Appointment
Congress has not specifically authorized courts to appoint counsel for plaintiffs

proceeding under 42 U.S.C. § 1983. Under 28 U.S.C. § 1915(e)(1), federal courts are
given the power to request that an attorney represent an indigent plaintiff. This
language is not significantly different from that of former section 1915(d). In Mallard
v. U.S. Dist. Court for Southern Dist. Of Iowa, 490 U.S. 296, 301-302 (1989), the
United States Supreme Court held that federal courts can only request that an
attorney represent a person unable to employ counsel, because federal courts are not
empowered under 28 U.S.C. § 1915(d) to make compulsory appointments.
1

“Generally speaking, no right to counsel exists in § 1983 actions [but]
appointment of counsel should be made as authorized by 28 U.S.C. § 1915(d) where
‘exceptional circumstances’ are present.” Robbins v. Maggio, 750 F.2d 405, 412 (5th
Cir. 1985) (internal citations omitted).
Even when a plaintiff has nonfrivolous § 1983 claims, a “trial court is not
required to appoint counsel ... unless the case presents exceptional circumstances.”
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); see also Jackson v. Cain, 864
F.2d 1235, 1242 (5th Cir. 1989). Though the Fifth Circuit has declined to articulate
a “comprehensive definition of exceptional circumstances,” Ulmer, 691 F.2d at 213
(quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir.1982)), the court has supplied
factors that a district court should consider in determining whether exceptional
circumstances warrant the appointment of counsel, including:
1. the type and complexity of the case;
2. the petitioner's ability to present and investigate his case;
3. the presence of evidence which largely consists of conflicting
testimony so as to require skill in presentation of evidence and in crossexamination; and
4. the likelihood that appointment will benefit the petitioner, the court,
and the defendants by shortening the trial and assisting in just
determination.
Naranjo v. Thompson, 809 F.3d 793, 799 (5th Cir.2015), citing Parker v. Carpenter,
978 F.2d 190, 193 (5th Cir.1992) (internal quotation marks and citation omitted).
Additionally, a court may consider whether a plaintiff has demonstrated the inability
to secure private counsel. See Jackson, 864 F.2d. at 1242; Ulmer, 91 F.2d. at 213.
Brumfield contends he is entitled to appointment of counsel for the following
reasons: (1) he has limited legal experience and does not have access to any legal
2

assistance or proper research facilities to perfect his petition for certiorari; and (2) if
able to perfect his petition, he could not guarantee it would reach the Supreme Court
within the specified time limitations or without being intercepted and/or altered.
(Doc. 36).
Brumfield requests appointment of counsel after his case was dismissed with
prejudice (Doc. 23), and affirmed by the Fifth Circuit in Brumfield v. Natchitoches
Parish Detention Center, 689 Fed.Appx. 309 (5th Cir. 2017) (per curiam). Brumfield
has presented this motion to the Court, which reflects his ability to further present
and litigate his case. Further, the case is not complex. The legal issues involve the
application of well-established and long-standing principles, and the factual issues
are simple. This case reveals no exceptional circumstances warranting appointment
of counsel.
II.

Request for Assistance
Prisoners have a constitutional right of access to the courts. Bounds v. Smith,

430 U.S. 817, 821 (1977). This right “requires prison authorities to assist inmates in
the preparation and filing of meaningful legal papers by providing…adequate law
libraries or adequate assistance from persons trained in the law.” Id.
“Bounds did not create an abstract, freestanding right to a law library or legal
assistance, [and] an inmate cannot establish relevant actual injury simply by
establishing that his prison’s law library or legal assistance program is sub-par in
some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Thus, even in the
case of prisoners, no right to legal assistance, let alone counsel, exists without some

3

concrete, particularized injury. See Id. at 351-52; see also Chriceol v. Phillips, 169
F.3d 313, 317 (5th Cir. 1999).
Brumfield filed this civil rights complaint (Doc. 5), and amended complaint
(Doc. 12), pursuant to 42 U.S.C. § 1983. Brumfield alleged he is a pretrial detainee
in the NPDC. He named NPDC as the only defendant. He alleged that while confined
there, he was attacked by another inmate, and was denied medical care for his injury.
In his amended complaint, Brumfield claimed he is being denied access to the Court,
has not received assistance from inmate counsel, and does not receive adequate time
in the law library. (Doc. 12, p. 5).
Brumfield’s § 1983 Complaint was dismissed as frivolous (Doc. 23). The Fifth
Circuit affirmed. Brumfield, 689 Fed.Appx. at 309. Brumfield’s claim that NPDC
officials denied him access to the courts was at issue on appeal. Id. at 310. Citing
Lewis, the Fifth Circuit noted that the prisoner must show that he was prejudiced by
the alleged violation. Id. “To establish prejudice, a prisoner must show that his
ability to pursue a nonfrivolous legal claim was hindered by the actions of the
defendants.” Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). The Fifth
Circuit held Brumfield’s arguments show that he filed numerous unsuccessful
pleadings in various courts. Id. at 310. The Fifth Circuit further found Brumfield
failed to make the required showing. Id. at 310. Brumfield’s case is now closed.
To the extent Brumfield seeks to amend his complaint by seeking a transfer
for access to the courts, the amendment would be futile since it would not change the
substance of his complaint.

4

Brumfield also seeks to amend his complaint to include a May 19, 2017
Administrative Remedy Procedure (“ARP”) grievance regarding the alleged failure of
NPDC employees to provide him with postage or copies on May 15 and May 16, 2017.
(Doc. 36, p. 12/13). This new claim would need to be filed as a separate action.
Additionally, Brumfield will need to properly exhaust ARP prior to filing a complaint
for the new grievance.
Brumfield also includes in his request denial of access to the courts regarding
both civil and criminal matters before the Tenth Judicial District Court of Louisiana
and the State of Louisiana Court of Appeal, Third Circuit. (Doc. 36-1). Those claims
are not before this Court.
For these reasons, Brumfield’s motion is without merit.
Accordingly,
IT IS HEREBY ORDERED that Brumfield’s Motion for Assistance (Doc. 36) is
DENIED.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this
29th
_______ day of September, 2017.
______________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

5