Allen v. Woodall et al
ORDER denying 61 Motion for Appointment of Counsel. Signed by Magistrate Judge Michael T. Parker on August 20, 2012. (KM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
GARY DEWAYNE ALLEN
CIVIL ACTION NO. 2:11cv209-MTP
DR. RON WOODALL, ET AL.
THIS MATTER is before the court on the Plaintiff’s Motion to Appoint Counsel .
Having considered the motion, the court finds that it should be denied.
In his motion to appoint counsel, Plaintiff claims he needs counsel because reads at an
elementary level. In general, there is no right to counsel in civil rights cases. Hardwick v. Ault,
517 F.2d 295, 298 (5th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982)
(stating that there is no right to the automatic appointment of counsel in a civil case under 28
U.S.C. § 1915); Salmon v. Corpus Christi ISD, 911 F.2d 1165, 1166 (5th Cir. 1990). Section
1915(e)(1) authorizes federal courts only to request that a particular attorney undertake the
representation of a litigant proceeding in forma pauperis; it does not authorize the court to make
coercive appointments of counsel. See Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490
U.S. 296, 310 (1989). Indigent litigants in federal civil rights cases generally possess no
constitutional or statutory right to appointed counsel. See Salmon, 911 F.2d at 1166; Jackson v.
Cain, 864 F.2d 1235, 1242 (5th Cir. 1989); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). A
trial court is not required to appoint counsel for an indigent party in a civil rights lawsuit unless
the case presents truly exceptional circumstances. See Freeze v. Griffith, 849 F.2d 172, 175 (5th
Cir. 1988); Good v. Allain, 823 F.2d 64, 66 (5th Cir. 1987); Feist v. Jefferson County Comm’rs
Court, 778 F.2d 250, 253 (5th Cir. 1985); see also Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Although no comprehensive definition of "exceptional circumstances" is practical, the
existence of such circumstances will necessarily turn on two basic considerations: (1) the type
and complexity of the case and (2) the abilities of the individual bringing it. See Freeze, 849
F.2d at 175; Good, 823 F.2d at 66; Feist, 778 F.2d at 253; see also Ulmer, 691 F.2d at 212. The
United States Court of Appeals for the Fifth Circuit has directed trial courts to consider whether
the appointment of counsel would be of service not only to the plaintiff, but also possibly to the
court and the defendant, through sharpening of issues, the shaping of the examination and crossexamination of witnesses, and, thus the shortening of trial and assisting in a just determination.
See Cooper v. Sheriff, Lubbock County, Texas, 929 F.2d 1078, 1084 (5th Cir. 1991); Jackson v.
Dallas Police Dep’t, 811 F.2d 260, 262 (5th Cir. 1986); Feist, 778 F.2d at 253; see also Ulmer,
691 F.2d at 213. It is also appropriate for the court to consider whether the indigent plaintiff has
demonstrated an inability to secure the assistance of private counsel, especially in view of the
opportunity for a prevailing Section 1983 plaintiff to recover attorney's fees. See Cain, 864 F.2d
This court is given considerable discretion in determining whether to appoint counsel.
Ulmer, 691 F.2d at 211. After consideration of the record along with the applicable case law, the
court has determined that Plaintiff’s pleadings contain no novel points of law which would
indicate the presence of "exceptional circumstances." While Plaintiff may read and write at an
elementary level, he is not illiterate.1 Plaintiff has demonstrated through the pleadings filed in
this matter that he is capable of presenting his claims. Additionally, the court conducted an
omnibus hearing where Plaintiff explained and clarified his claims and the court assisted him in
obtaining discovery to support his claims. See Omnibus Order .
The motion simply does not justify or merit the appointment of counsel or exhibit any
“exceptional circumstances.” Therefore, counsel will not be appointed to the Plaintiff at this
juncture of the proceedings. Accordingly,
IT IS, THEREFORE, ORDERED:
Plaintiff’s Motion to Appoint Counsel  is DENIED.
It is Plaintiff’s responsibility to keep the court informed of his current address.
Plaintiff’s failure to do so will be deemed as a purposeful delay and contumacious act by the
Plaintiff and may result in the dismissal of this case.
SO ORDERED this the 20th day of August, 2012.
s/ Michael T. Parker
United States Magistrate Judge
According to the exhibit attached to his motion, Plaintiff reads at a level between the
first and second grades. See Ex. A to Motion [61-1]. Moreover, Plaintiff testified during his
omnibus hearing that he can read and write “a little bit” and has an eighth grade education. See
Ex. D to Motion [56-4] at 5. Plaintiff was advised during the hearing that the court would assist
him with reading any documents during the hearing, if necessary.
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