Smith v. Taylor-Pedersen et al

Filing 15

ORDER DENYING without Prejudice Plaintiff's 13 Motion to Appoint Counsel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHEN SMITH,
Plaintiff,
v.

Case No. 5:17-cv-11532
District Judge John Corbett O’Meara
Magistrate Judge Anthony P. Patti

TERI TAYLORPEDERSON, et al.,
Defendants.
___________________________________/
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (DE 13)

This matter is before the Court for consideration of Plaintiff Stephen Smith’s

motion for appointment of counsel. (DE 13.) For the reasons that follow,
Plaintiff’s motion is DENIED WITHOUT PREJUDICE.
I.

BACKGROUND
Plaintiff, a state prisoner who is proceeding in forma pauperis, filed his

initial complaint in this action on May 12, 2017 and an amended complaint on June
16, 2017. Although the U.S. Marshal Service has acknowledged its receipt of
service of process documents, to date only one Defendant has been served. (DE 10
and 14.) It appears that, due to the timing, this Defendant was served with the

initial complaint and not the amended complaint. Thus, this case is still in its very
preliminary stages.
In his amended complaint, Plaintiff asserts that Defendants conspired to
indict him by issuing false charges against him in order to keep him incarcerated.
He seeks immediate release from confinement, along with compensatory and
declaratory damages.
Plaintiff filed this motion for appointment of counsel on July 19, 2017,
asking the Court to appoint an attorney in this civil matter because he cannot afford
counsel, the issues involved are complex, he has limited access to the law library,
and he has limited knowledge of the law. (DE 13.) For the reasons that follow,
Plaintiff’s motion is DENIED WITHOUT PREJUDICE.
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
2 

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

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.
3 

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 point. First,
his motion is somewhat premature. Only one Defendant has even been served in
this matter. Second, his argument that he cannot afford an attorney would apply
to nearly every pro se prisoner proceeding in forma pauperis, and does not
constitute extraordinary circumstances. Moreover, in both his complaint and
amended complaint Plaintiff has illustrated his ability to articulate his claims and
adequately communicate his requests to the Court in a reasonably clear and wellorganized manner. Plaintiff’s instant motion is a testament to this: it is concise,
well organized, and cites to relevant case law. Finally, although Plaintiff seeks
immediate release from imprisonment as a remedy in this matter, to the extent that
he asks for relief from his conviction or sentence, that action is more properly
brought pursuant to 28 U.S.C. § 2254. There appears to be no danger that
Plaintiff will be deprived of his physical liberty over and above his current
sentence if he loses this case.2

2

Plaintiff is urged to review the provision at 28 U.S.C § 2254 to ensure that the
instant case has been filed under the correct statute.
4 

Accordingly, at this time, Plaintiff’s motion to appoint counsel is DENIED
WITHOUT PREJUDICE. (DE 13.) 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: August 15, 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 August 15, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

5