Wright v. Bush et al
ORDER Denying without Prejudice Plaintiff's 8 Motion to Appoint Counsel--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-12644
District Judge Arthur Tarnow
Magistrate Judge Anthony P. Patti
TERRANCE BUSH, et al.,
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (DE 8)
This matter is before the Court for consideration of Plaintiff Willie Wright’s
motion for appointment of counsel. (DE 8.) For the reasons that follow, Plaintiff’s
motion is DENIED WITHOUT PREJUDICE.
Plaintiff, a state prisoner who is proceeding in forma pauperis, brings this
lawsuit under 42 U.S.C. § 1983, alleging claims of a lack of due process and
violations of the Equal Protection Clause of the United States Constitution
stemming from alleged reports made by Defendants to the public regarding
Plaintiff’s escape/attempted escape from custody at the Detroit Medical Center.
(DE 1.) He names five Defendants, including the Detroit Medical Center and four
members of the Wayne County Sheriff’s Office. To date, the four sheriff’s office
employees have filed an answer (DE 9) and a motion to dismiss (DE 10), each of
which was filed on October 5, 2016. The Detroit Medical Center has not answered
or otherwise appeared.
Plaintiff filed this motion for appointment of counsel on September 23,
2016. (DE 8.) He asks the Court to appoint an attorney in this civil matter because
he is unable to afford counsel and his imprisonment impinges on his ability to
litigate the case successfully.
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
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).
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.
Applying the foregoing authority, Plaintiff has not described circumstances
sufficient 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, especially his ability to engage in discovery. Such
factors would apply to nearly every pro se prisoner proceeding in forma pauperis,
and do not constitute extraordinary circumstances. Further, the claims in
Plaintiff’s complaint do not appear to involve especially complex issues.
Moreover, Plaintiff’s complaint illustrates his ability to articulate his claims in a
coherent manner and even the instant motion is 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.
Accordingly, at this time, Plaintiff’s motion to appoint counsel is DENIED
WITHOUT PREJUDICE. (DE 8.) 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: October 19, 2016
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing document sent to parties of record on
October 19, 2016, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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