St. Ann v. McLean et al

Filing 33

ORDER DENYING Without Prejudice Plaintiff's 32 Motion to Appoint Counsel --Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ST. ANN,
Plaintiff
v.

Case No. 5:15-11770
District Judge Judith Levy
Magistrate Judge Anthony P. Patti

TODD MCLEAN, et al.,
Defendants.
___________________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (DE 32)
This matter is before the Court for consideration of Plaintiff David St. Ann’s
motion for appointment of counsel. (DE 32.) 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 against various correctional officials, originally
alleging claims regarding his remaining at Level IV (or maximum security/
disciplinary unit) following the February 14, 2014 expiration of his detention and
loss of privileges. The Court has granted in part Defendants’ motion for summary
judgment (DE 29), which resulted in the dismissal of many of Plaintiff’s original
causes of action. Recently, however, the Court granted Plaintiff’s second motion

for leave to amend his complaint, which added another Defendant and a retaliation
cause of action. (DE 30.)
Plaintiff filed this motion for appointment of counsel on November 4, 2016.
(DE 32.) In his motion, 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.
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.”).
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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).
Applying the foregoing authority, Plaintiff has not described circumstances
sufficiently exceptional to justify a request for appointment of counsel. Plaintiff

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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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contends that he is indigent and unable to afford counsel and 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,
despite Plaintiff’s claim to the contrary, the operative claims do not appear to
involve especially complex issues. Moreover, Plaintiff’s pleadings illustrate 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: November 10, 2016

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

I hereby certify that a copy of the foregoing document was sent to parties of record
on November 10, 2016, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager to the
Honorable Anthony P. Patti
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