Price v. Stephenson et al

Filing 28

ORDER DENYING without Prejudice Plaintiff's 25 Motion to Appoint Counsel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE PRICE,
Plaintiff
v.

Case No. 2:16-13434
District Judge Thomas L.
Ludington
Magistrate Judge Anthony P. Patti

SCOTT STEPHENSON,
JEFFREY DEROCHER, and
RICHARD SPEICH
Defendants.
___________________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (DE 25)
This matter is before the Court for consideration of Plaintiff Tyrone Price’s
motion for appointment of counsel. (DE 25.) For the reasons that follow,
Plaintiff’s motion is DENIED WITHOUT PREJUDICE.
I.

BACKGROUND
Plaintiff, a federal prisoner who is proceeding in forma pauperis, brings this

prisoner civil rights lawsuit against three defendants, Sheriff Scott Stephenson,
Deputy Richard Speich, and Lieutenant Jeffrey Derocher, alleging they violated his
rights under the First Amendment by opening his legal mail outside of his presence
and by holding his outgoing legal mail while he was housed at the Midland County

Jail. (DE 1.) He asks the Court to “sue and prosecute” because his Constitutional
rights were violated.
Plaintiff filed this motion for appointment of counsel on June 26, 2016. (DE
25.) In his motion, he asks the court to appoint an attorney in this civil matter
because of his of lack of legal experience and the complexity of the issues in this
matter. Judge Ludington issued an order referring all pretrial proceedings to me on
January 2, 2017. (DE 10.)
II.

ANALYSIS
As a preliminary matter, although Plaintiff styles his motion as one for

appointment of counsel, the Court does not have the authority to appoint a private
attorney for Plaintiff in this civil matter. Proceedings in forma pauperis are
governed by 28 U.S.C. § 1915, which provides that “[t]he court may request an
attorney to represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1) (emphasis added). However, even if the circumstances of Plaintiff’s
case convinced the Court to engage in such a search, “[t]here is no right to
recruitment of counsel in federal civil litigation, but a district court has discretion
to recruit counsel under 28 U.S.C. § 1915(e)(1).” Dewitt v. Corizon, Inc., 760
F.3d 654, 657 (7th Cir. 2014) (emphasis added); see also Olson v. Morgan, 750
F.3d 708, 712 (7th Cir. 2014) (“Congress hasn’t provided lawyers for indigent

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prisoners; instead it gave district courts discretion to ask lawyers to volunteer their
services in some cases.”).
The Supreme Court has held that there is a presumption that “an indigent
litigant has a right to appointed counsel only when, if he loses, he may be
deprived of his physical liberty.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 2627 (1981). With respect to prisoner civil rights cases in particular, the Court of
Appeals for the Sixth Circuit has held that “there is no right to counsel. . . . The
appointment of counsel in a civil proceeding is justified only by exceptional
circumstances.” Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004).1
Accordingly, although the Court has the statutory authority to request counsel for
pro se plaintiffs in civil cases under 28 U.S.C. § 1915(e), the exercise of this
authority is limited to exceptional situations.
In evaluating a matter for “exceptional circumstances,” a court should
consider: (1) the probable merit of the claims, (2) the nature of the case, (3) the
complexity of the legal and factual issues raised, and (4) the ability of the litigant
to represent him or herself. Lince v. Youngert, 136 F. App’x 779, 782 (6th Cir.
2005); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993); Lanier v.
Bryant, 332 F.3d 999, 1006 (6th Cir. 2003).

1

As noted above, although some of the case law colloquially discusses the Court’s
“appointment” of counsel in prisoner rights cases, under 28 U.S.C. § 1915 the
Court may only request that an attorney represent an indigent plaintiff.
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Applying the foregoing authority, Plaintiff has not described circumstances
sufficiently exceptional to justify a request for appointment of counsel. Plaintiff
contends that he is “a layman with law” with “no experience,” and that his issue
presented to the Court is complex, requiring assistance of counsel. Such factors
would apply to nearly every pro se prisoner proceeding in forma pauperis, and do
not constitute extraordinary circumstances. Further, despite Plaintiff’s claim to
the contrary, Plaintiff has on several occasions illustrated his ability to articulate
his claims in a coherent manner and provide sophisticated briefing to this Court—
in his Complaint, discovery motions, and his response to Defendant’s motion for
summary judgment—and even the instant motion is clear in outlining his reasons
for requesting the appointment of counsel. Moreover, contrary to Plaintiff’s
assertion, the operative claims do not appear to involve novel or especially
complex issues. Finally, there is no indication that Plaintiff will be deprived of his
physical liberty over and above his current sentence if he loses this civil case.
Accordingly, at this time, Plaintiff’s motion to appoint counsel is DENIED
WITHOUT PREJUDICE. (DE 25.) Plaintiff may petition the Court for the
recruitment of pro bono counsel if this case survives dispositive motion practice,
proceeds to trial, or if other circumstances demonstrate such a need in the future.
IT IS SO ORDERED.

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Dated: October 27, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on October 27, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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