McCray v. Mississippi Department of Corrections et al

Filing 8

ORDER denying 3 Motion to Appoint Counsel ; denying 7 Motion. Signed by Magistrate Judge Roy Percy on 8/8/17. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

OTIS OLIVER MCCRAY

PLAINTIFF

V.

NO. 4:17CV115-DMB-RP

MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL.

DEFENDANTS

ORDER
Plaintiff Otis Oliver McCray has filed a motion seeking the appointment of counsel to
represent him in this action brought under 42 U.S.C. § 1983, and a motion to reach a settlement
with the defendants before the case “goes forward.” See Docs. #3 & #7.
There is no automatic right to counsel in a § 1983 case. Wright v. Dallas County
Sheriff’s Department, 660 F.2d 623, 625-26 (5th Cir. 1981); Cupit v. Jones, 835 F.2d 82, 86 (5th
Cir. 1987). Unless there are “exceptional circumstances,” a district court is not required to
appoint counsel to represent indigent plaintiffs in a civil action. Branch v. Cole, 686 F.2d 264,
266 (5th Cir. 1982). The court has yet to conduct a hearing as set forth in Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985), at which time the plaintiff will have an opportunity to further
explain his claims, and the court will determine whether process should issue in this case.
Therefore, the plaintiff’s motion seeking the appointment of counsel is premature and should be
denied without prejudice to the plaintiff’s right to renew the motion following his Spears
hearing.
Additionally, the court finds that the plaintiff’s motion seeking a settlement should be
denied, as the parties, not the court, must determine whether they wish to reach a settlement in
this case.

It is, therefore, ORDERED that plaintiff’s motion for appointment of counsel [3] is
DENIED, and his motion for settlement [7] is DENIED.
THIS the 8th day of August, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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