Cline v. France
ORDER DENYING without Prejudice Plaintiff's 15 Motion to Appoint Counsel--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
VINCENT P. CLINE,
Case No. 4:16-cv-14332
District Judge Linda V. Parker
Magistrate Judge Anthony P. Patti
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (DE 15)
This matter is before the Court for consideration of Plaintiff Vincent P.
Cline’s motion for appointment of counsel. (DE 15.) For the reasons that follow,
Plaintiff’s motion to appoint counsel is DENIED WITHOUT PREJUDICE to
renewal after the case has proceeded past its initial stages.
Plaintiff, a state prisoner who is proceeding in forma pauperis, brings claims
under 42 U.S.C. § 1983, alleging that Defendant, Corrections Medical Officer
Deramus France, violated Plaintiff’s Eighth Amendment right against cruel and
unusual punishment by assaulting him on June 8, 2015 while he was housed at the
Woodland Center Correctional Facility (WCC). Defendant France has been served
and has filed Affirmative Defenses (DE 13), to which Plaintiff has responded. (DE
Plaintiff filed the instant motion on June 16, 2017, asking the Court to
appoint an attorney in this civil matter for five main reasons. (DE 15.) First,
Plaintiff notes that he is indigent and not able to afford counsel. Second, he asserts
that that the issues involved in this case are complex. Third, Plaintiff states that the
prison limits the hours that he may have access to the prison library, and that he
has limited knowledge of the law. Fourth, Plaintiff asserts he has a history of
multiple mental illnesses, which make it difficult for him to effectively litigate this
case. And fifth, he claims that the ends of justice would best be served if an
attorney were appointed.
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 appointment of counsel in a civil case, therefore, “is a
privilege not a right.” Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987)
(internal quotation omitted).
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.
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.
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 at this time. Plaintiff
contends that he is indigent and unable to afford counsel and his imprisonment
will limit his ability to litigate this case, including 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, even taking
Plaintiff’s claimed mental illness into account. Further, despite Plaintiff’s claim
to the contrary, the claims in Plaintiff’s complaint to not appear to be particularly
complex and are ably described by Plaintiff, involving an allegation of cruel and
unusual punishment related to the claimed June 8, 2015 assault. Moreover,
Plaintiff’s Complaint illustrates his ability to articulate his claims and adequately
communicate his requests to the Court in a coherent manner, and even the instant
motion is clear in outlining his reasons for requesting the appointment of counsel.
(DE 15 at 3-5.) 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 15.) 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: September 11, 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 September 11, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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