Hill v. United States

Filing 40

Judge Joseph L. Tauro: ORDER entered granting 35 Motion to Appoint Counsel. This matter is referred to the Court's Pro Bono Coordinator to attempt to secure counsel willing to represent Hill. Hill is advised that the grant of his motion to appoint counsel does not mean that he is guaranteed pro bono counsel. The Pro Bono Coordinator shall, by July 12, 2013, report to the Court the result of efforts to obtain pro bono counsel for Hill. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TYRONE B. HILL
Plaintiff,
v.
UNITED STATES,
Defendant.

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C.A. No. 12-40016-JLT

MEMORANDUM AND ORDER ON PLAINTIFF’S
RENEWED MOTION FOR APPOINTMENT OF COUNSEL
TAURO, J.
For the reasons stated below, plaintiff's motion for appointment of counsel is allowed and
the matter is referred to the Court’s Pro Bono Coordinator. If a pro bono attorney does not
volunteer to represent plaintiff, he will be required to represent himself.
I.

Background
Now before the Court is Plaintiff Tyrone Hill’s renewed motion for appointment of

counsel. See Docket No. 35. This action is brought under the Federal Tort Claims Act alleging
that, while an inmate confined to FMC Devens, correctional officers failed to respond to Hill’s
calls for help during an assault by another inmate. Hill now resides in Miami, Florida. See
Docket No. 39.
By Order and Memorandum dated February 12, 2013, Defendant’s motion to dismiss was
denied without prejudice because the Court determined that the issue of subject matter
jurisdiction cannot be resolved without discovery. See Docket Nos. 32, 33.

The Court

explained that Hill could now renew his motion to appoint counsel. See Docket No. 32.
The instant motion was filed while Hill was still in custody. See Docket No. 35. In his
motion, Hill avers (1) he is unable to afford counsel; (2) he suffers from post mental distress
disorder; (3) he is prescribed psychiatric medication; (4) Hill may be unable to conduct
discovery on his own; and (5) Hill has no legal education and depends on jailhouse lawyers for
assistance. Id.

II.

Legal Standard
Under 28 U.S.C. § 1915(e)(1), the court “may request an attorney to represent any person

unable to afford counsel.” 28 U.S.C. § 1915(e)(1).1 However, a civil plaintiff lacks a
constitutional right to free counsel. DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). In
order to qualify for appointment of counsel, a 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. Id. To determine whether exceptional
circumstances sufficient to warrant the appointment of counsel are present in a case, the court
must examine the total situation, focusing on the merits of the case, the complexity of the legal
issues, and the litigant’s ability to represent him or herself. Id. at 24.
III.

Analysis
Here, plaintiff is indigent and unable to afford counsel. While incarcerated, Hill relied on

the assistance of jailhouse lawyers. Although Hill is now free to investigate and pursue his
claims without the obvious impediments associated with incarceration, he states that he is
unfamiliar with legal proceedings and may not be able to conduct discovery on his own.
Although many pro se litigants face the same obstacles, including psychological challenges, at
this juncture, the Court finds merit to these proceedings and will allow Hill’s motion.
ORDER
ACCORDINGLY, for the reasons stated above, it is hereby Ordered that:
(1)

Plaintiff's motion for appointment of counsel (Docket No. 35) is allowed;

(2)

This matter is referred to the Court’s Pro Bono Coordinator to attempt to secure
counsel willing to represent Hill. Hill is advised that the grant of his motion to
appoint counsel does not mean that he is guaranteed pro bono counsel. The
Court’s Pro Bono Coordinator will contact members of the local bar who have
expressed an interest in pro bono representation in this Court and inform them

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In this District, there is no Plan authorizing the payment for counsel appointed for civil
litigants such as the Plaintiff. Any appointment of counsel would therefore be contingent upon
the availability of pro bono counsel to accept voluntarily an appointment. Cf. 18 U.S.C. § 3006A
(providing for appointment of counsel in habeas petitions under 28 U.S.C. § 2241, § 2254 and
motions under § 2255 and payment under the Criminal Justice Act).
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that the Court seeks a pro bono attorney for the plaintiff. If, however, none of
these attorneys agree to represent the plaintiff, he will be required to represent
himself.
(3)

The Pro Bono Coordinator shall, by July 12, 2013, report to the Court the result of
efforts to obtain pro bono counsel for Hill.

SO ORDERED.
5/14/13
DATE

/s/ Joseph L. Tauro
UNITED STATES DISTRICT JUDGE

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