Spencer v. Lewis et al

Filing 162

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Motion to Appoint Counsel (Docket Entry # 149 ). The motion to appoint counsel (Docket Entry # 149 ) is DENIED without prejudice. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BARRY SPENCER,
Plaintiff,

v.

CIVIL ACTION NO.
13-11528-MBB

CITY OF BOSTON, et. al.,
Defendants.

MEMORANDUM AND ORDER RE:
MOTION TO APPOINT COUNSEL
(DOCKET ENTRY # 149)
May 3, 2016
BOWLER, U.S.M.J.
Plaintiff Barry Spencer (“plaintiff”) seeks appointment of
counsel in this civil rights action alleging the use of excessive
force as well as assault and battery by various officers of the
Boston Police Department and the City of Boston.

Plaintiff, an

inmate at Old Colony Correctional Center in Bridgewater,
Massachusetts, is proceeding pro se and in forma pauperis.
DISCUSSION
There is no constitutional right to appointment of counsel
beyond the direct appeal of a criminal conviction.

Swazo v.

Wyoming Department of Corrections State Penitentiary Warden, 23
F.3d 332, 333 (10th Cir. 1994); see DesRosiers v. Moran, 949 F.2d
15, 23 (1st Cir. 1991) (“[t]here is no absolute constitutional
right to a free lawyer in a civil case”).

Under 28 U.S.C. §

1915(e)(1), however, a court has the discretion to request
appointed counsel for “any person unable to afford counsel.”

28

U.S.C. § 1915(e)(1); see Weir v. Potter, 214 F.Supp.2d 53, 54
(D.Mass. 2002) (citing section 1915(e)(1) and noting that
appointment is discretionary).
In order to obtain appointed counsel under section
1915(e)(1), there must be a showing of both indigency and
exceptional circumstances.

DesRosiers v. Moran, 949 F.2d at 23;

accord Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (“an
indigent litigant must demonstrate exceptional circumstances in
his or her case to justify the appointment of counsel”); Weir v.
Potter, 214 F.Supp.2d at 54.

To determine whether exceptional

circumstances exist, a court “examine[s] the total situation,
focusing, inter alia, on the merits of the case, the complexity
of the legal issues, and the litigant’s ability to represent
himself.”

DesRosiers v. Moran, 949 F.2d at 24; see Weir v.

Potter, 214 F.Supp.2d at 54 (in assessing whether exceptional
circumstances exist to warrant appointment, courts consider
“merits of the case, the litigant’s capability of conducting a
factual inquiry, the complexity of the legal and factual issues,
and the ability of the litigant to represent [him]self.)”
In the case at bar, the facts are not complex.

Rather, they

involve a single incident that took place in September 2012.

In

light of the summary judgment ruling, the only remaining claims

2

are assault and battery and excessive force.
113).

(Docket Entry #

Neither the facts nor the law is sufficiently complicated

to warrant appointment of counsel.

In addition, plaintiff’s

filings as well as his arguments in the courtroom demonstrate an
adequate ability to represent himself.1
CONCLUSION
In accordance with the foregoing discussion, the motion to
appoint counsel (Docket Entry # 149) is DENIED without prejudice.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

1

In light of these findings, it is not necessary to
address whether plaintiff makes a sufficient showing of
indigency.
3