Winebarger v. Corizon Health Inc. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff Richard B. Winebarger's motion for the appointment of counsel (Docket No. 4) is DENIED without prejudice. Signed by District Judge Catherine D. Perry on February 2, 2017. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RICHARD B. WINEBARGER,
CORIZON, LLC, et al.,
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Richard B. Winebarger for
the appointment of counsel. (Docket No. 4). The motion will be denied without prejudice.
The appointment of counsel for an indigent pro se plaintiff lies within the discretion of
the Court, as there is no constitutional or statutory right to appointed counsel in civil cases.
Ward v. Smith, 732 F.3d 940, 942 (8th Cir. 2013); see 28 U.S.C. ' 1915(e) (“when an indigent
prisoner has pleaded a nonfrivolous cause of action, a court may appoint counsel.”) (emphasis
Once the plaintiff alleges a prima facie claim, the Court must determine the plaintiff’s
need for counsel to litigate his claim effectively. In re Lane, 801 F.2d 1040, 1043 (8th Cir.
1986). The standard for appointment of counsel in a civil case is whether both the plaintiff and
the Court would benefit from the assistance of counsel.
Edgington v. Missouri Dept. of
Corrections, 52 F.3d 777, 780 (8th Cir. 1995), abrogated on other grounds, Doe v. Cassel, 403
F.3d 986, 989 (8th Cir. 2005) (citations omitted). This determination involves the consideration
of several relevant criteria which include “the factual complexity of the issues, the ability of the
indigent person to investigate the facts, the existence of conflicting testimony, the ability of the
indigent person to present the claims, and the complexity of the legal arguments.” Phillips v.
Jasper County Jail, 437 F.3d 791, 94 (citing Edgington, 52 F.3d at 780).
In some instances, a court may deny a motion for appointment of counsel without
prejudice because it believes the record is insufficient to determine, one way or the other,
whether it would be appropriate to appoint counsel when the above factors are considered. See
Id. For example, discovery may not have begun or may have just begun at the time of the
request for appointment of counsel, so there is no conflicting testimony. There may be no
indication in the record that the plaintiff lacks the ability to investigate or present his case where
he correctly identifies the applicable legal standard governing his claims and his complaint
contains all essential information. Finally, the Court may consider whether the plaintiff’s claims
involve information that is readily available to him. Phillips, 437 F.3d at 794.
In this case, the record is insufficient to determine, one way or the other, whether the
appointment of counsel is appropriate at this time. Discovery has yet to begin. The claims
plaintiff has presented do not appear factually or legally complex, and plaintiff does not argue
otherwise. Finally, plaintiff has demonstrated himself to be well able to clearly present and
investigate his claims.
He has filed a complaint that is articulate and readily understood,
indicating that he is capable of clear expression and logical organization of content. However,
the Court recognizes that the relevant circumstances may change as discovery takes place. The
Court will therefore deny the motion for the appointment of counsel, without prejudice. If
appropriate at a later stage of this litigation, plaintiff may file a motion to appoint counsel that
addresses the foregoing factors.
IT IS HEREBY ORDERED that plaintiff Richard B. Winebarger’s motion for the
appointment of counsel (Docket No. 4) is DENIED without prejudice.
Dated this 2nd day of February, 2017.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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