Williams v. Shinseki et al

Filing 23

Magistrate Judge Timothy S. Hillman: Memorandum and ORDER entered denying 13 Motion to Appoint Counsel. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MIKEL WILLIAMS,
PLAINTIFF,
VS.
ERIC SHINSEKI, Secretary of Defense,
TAMMY FOLLENSBEE,
FATHER SEBASTIAN UGOCHUKWU,
DEFENDANTS.

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CIVIL ACTION
NO. 11-40030-FDS

MEMORANDUM AND ORDER
March 13, 2012

HILLMAN, M.J.

Nature of the Proceeding
This matter was referred to me by Order of Reference dated September 29, 2011, for a
decision on Mikel Williams’s (“Plaintiff” or “Williams”) motion for appointment of counsel
(Docket No. 13). 1
Nature of the Case
Williams has filed a complaint against Eric Shinseki, Secretary of Veteran Affairs,
Tammy Follensbee (“Follensbee”) and Father Sebastian Ugochukwu (“Ugochukwu”), alleging
employment discrimination on the basis of race, age and religion. Specifically, the Plaintiff
alleges that a job promised to him as a Chaplain at the Edith Nourse Rogers Memorial Hospital

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The Plaintiff did not file a formal motion. Instead he wrote a letter to the Court requesting a courtappointed attorney. The Court will treat his letter as a motion for the appointment of counsel.

in Bedford, Ma (“Hospital”) went to two other individuals instead, both of whom are Catholic
and African American. Williams seeks appointment of counsel to represent him in this civil
action. (Docket No. 13).
Background
At the time that he filed his Complaint, Williams filed a motion for appointment of
counsel. The Court (Saylor, D.J.) denied that motion without prejudice (see Docket No. 5), on
the grounds that the request was premature, given that the Defendants had yet to be served or
respond to the Complaint. The Court stated that Williams could renew his motion for
appointment of counsel after the Defendants file answers or other responsive pleadings. At the
time that Williams filed his second motion for appointment of counsel, the only additional
pleadings which had the Defendants were a motion to dismiss for failure to effect proper service
and supporting memorandum. Thereafter, the Defendants filed a second motion to dismiss; that
motions seeks dismissal of the Complaint against Follensbee for failure to effect timely service
and dismissal of the claims against Follensbee and Ugochukwu on the grounds that individuals
are not subject to suit for federal workplace discrimination. The Defendants have also requested
that Williams be required to file a more definite statement.
Discussion
There is no constitutional right to a free lawyer in civil cases. DesRosiers v. Moran, 949
F.2d 15, 23 (1st Cir. 1991); Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986). However, this
Court has granted Williams’s motion to proceed in forma pauperis as an indigent party (see
Docket No. 9) and therefore, Williams may seek appointment of counsel in accordance with 28
U.S.C. § 1915(e)(1).

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The Applicable Legal Standard
In order to qualify for appointment of counsel under Section 1915(e)(1), the party must
be indigent and “exceptional circumstances must exist such that denial of counsel will result in
fundamental unfairness impinging on the party’s due process rights.” DiBuono v. Guckenheimer
Enterprises, Inc., Civ. No. 10-40255-FDS, 2011 WL 180554, (D.Mass. Jan. 13, 2011); Cookish,
787 F.2d at 2. To determine whether exceptional circumstances exist, the court must look to the
totality of the indigent party’s situation. DesRosiers, 949 F.2d at 24. There are several factors
that demonstrate “exceptional circumstances”, such as: “the indigent’s ability to conduct
whatever factual investigation is necessary to support his or her claim; the complexity of the
factual and legal issues involved; and the capability of the indigent litigant to present the case.”
Cookish, 787 F.2d at 3 (internal citations omitted).
These factors are not exclusive. DesRosiers, 949 F.2d at 24 (a court must examine the
total situation and can use a variety of reasons to decide a motion for appointment of counsel).
Other factors the court may use to determine whether to appoint counsel in civil proceedings are:
the likelihood of success of the claim; whether information necessary to support a petitioner’s
claims are available in prior court filings; and the petitioner’s prior experience litigating his or
her own claims. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (noting the “fair
likelihood of success on the constitutional claim” cut towards appointing counsel for habeas
petitioner); Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D.Mass. 2008) (“When a petitioner can
find the information necessary to support his claims in prior court filings, appointment of
counsel is typically not appropriate.”); Carmichael v. Warden, 346 F. Supp. 2d 207, 209 (D.Me.

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2004) (noting the “veteran litigator” petitioner's previous involvement in lawsuits and his ability
to file appropriate motions demonstrate an ability to represent himself).
Whether Counsel Should Be Appointed In This Case
The Court has granted Williams’s motion to proceed in forma pauperis and therefore, the
Court will assume that has satisfied the indigency requirement.2

In support of his request,

Williams asserts: (1) he no longer has the expertise to proceed pro se; and (2) because he has
moved to Utah, it will be impossible for him to continue to represent himself as this case
proceeds in Massachusetts.
First, neither the legal issues nor the underlying supporting facts are unusually complex
and in his pleadings, Williams has adequately articulated the legal and factual bases of his claim.
Second, as evidenced by his responses to the Defendants’ motions to dismiss, Williams has
demonstrated a sufficient ability to understand legal issues as they arise and to draft coherent
legal arguments. Finally, the Court must consider the merits of Williams’s claim. At this very
early stage of the proceedings, the Court has little information from which to assess the merits of
the Williams’s claim and for that reason, I cannot make a determination as to whether he is likely
to succeed on the merits. Therefore, this last factor is neutral.
As was the case with Williams’s first request for appointment of counsel, considering the
relevant factors, at this early stage of the proceedings, I do not find that he has demonstrated the
existence of exceptional circumstances sufficient to warrant the appointment of counsel.
Therefore, his motion to appoint counsel is denied, without prejudice.

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I will note that since filing this case, Williams has accepted a full time position as a chaplain at a VA
hospital in Utah. Given his new employment status, should Williams file any future motions for appointment of
counsel, the Court will not assume that he has satisfied the indigency requirement. Instead, Williams will be
required to file an affidavit establishing his financial need.

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Conclusion
For the reasons set forth above, Williams’s motion for appointment of counsel (Docket
Nos. 13) is denied.

/s/ Timothy S. Hillman
Timothy S. Hillman
United States Magistrate Judge

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