Hoosier v. Liu et al

Filing 25

ORDER DENYING without Prejudice Plaintiff's 24 Motion to Appoint Counsel. Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE HOOSIER,
Plaintiff
v.

Case No. 2:16-10688
District Judge Denise Page Hood
Magistrate Judge Anthony P. Patti

WENDY LIU, et al.,
Defendants.
___________________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (DE 24)
This matter is before the Court for consideration of Plaintiff Dwayne
Hoosier’s motion for appointment of counsel. (DE 24.) For the reasons that
follow, Plaintiff’s motion is DENIED WITHOUT PREJUDICE.
I.

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

lawsuit under 42 U.S.C. § 1983, alleging claims of deliberate indifference to his
medical needs, leading to a diagnosis of ulcerative colitis and complications from
medications prescribed to him. (DE 1.) He names nine Defendants in his
complaint, and all appear to be medical professionals who treated him during his
various illnesses. To date, seven of the nine Defendants have been served and filed
an answer on May 26, 2016. (DE 22.)

Plaintiff filed this motion for appointment of counsel on July 1, 2016. (DE
24.) In his motion, he asks the court to appoint an attorney in this civil matter
because is unable to afford counsel and his imprisonment impinges on his ability to
litigate the case successfully.
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
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
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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).
Applying the foregoing authority, Plaintiff has not described any
circumstances to justify a request for appointment of counsel. Plaintiff contends
that he is indigent and unable to afford counsel and that his imprisonment will
limit his ability to litigate this case. Such factors would apply to nearly every pro

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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se prisoner proceeding in forma pauperis, and do not constitute extraordinary
circumstances. Further, the claims in Plaintiff’s complaint do not involve
complex issues. Moreover, Plaintiff has on several occasions illustrated his ability
to articulate his claims clearly and adequately communicate his requests to the
Court. For example, his complaint consists of over 175 numbered paragraphs in
which he lays out the facts of his case in a well-organized manner. Further, even
the instant motion is thorough and clear in outlining his reasons for requesting the
appointment of counsel. 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.
The Court does note Plaintiff’s contention that the help of counsel would be
beneficial when preparing for trial. However, such preparation is premature as
this case is in its infancy. Accordingly, at this time, Plaintiff’s motion to appoint
counsel is DENIED WITHOUT PREJUDICE. (DE 24.) 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.
Dated: July 14, 2016

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