Lawlor v. Lee et al

Filing 26

ORDER denying without prejudice 24 Motion to Appoint Counsel. So Ordered by Magistrate Judge Landya B. McCafferty.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gary Lawlor
v.

Civil No. 12-cv-55-PB

Trish Lee et al.
O R D E R
Before the court is Gary Lawlor’s motion for courtappointed counsel (doc. no. 24).

For the reasons stated herein,

the motion is denied without prejudice.1
There is no constitutional right to have the court appoint
counsel in a civil case.

See Maroni v. Pemi-Baker Reg’l Sch.

Dist., 346 F.3d 247, 257 (1st Cir. 2003).

While the court has

the discretion to appoint counsel in a particular case, it must
do so “only if ‘exceptional circumstances [a] represent such
that a denial of counsel [i]s likely to result in fundamental
unfairness impinging on [plaintiff’s] due process rights.’”
King v. Greenblatt, 149 F.3d 9, 14 (1st Cir. 1998) (quoting
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991)); see also
Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (indigent
1

The deadline for objecting or otherwise responding to this
motion has not yet passed. Because the court is denying the
motion, the court finds it is most expedient to do so prior to
the preliminary pretrial, scheduled for August 17, 2012, so that
Lawlor can adequately prepare for that hearing.

litigant has no constitutional right to counsel in a civil case
and must demonstrate exceptional circumstances to justify the
appointment of counsel).

To determine if “exceptional

circumstances” require the appointment of counsel, “a court must
examine the total situation, focusing, inter alia, on the merits
of the case, the complexity of the legal issues, and the
litigant’s ability to represent himself.”
at 24.

DesRosiers, 949 F.2d

Additional relevant facts include the complexity of the

factual issues and the indigent’s ability to conduct the
necessary factual investigation on his own.

See Cookish, 787

F.2d at 3.
In support of his request for counsel, Lawlor asserts that:
1) he is unable to get legal advice from the court clerk’s
office; 2) he is having difficulty understanding all of the
language used in the legal papers filed by defendants’ counsel;
3) defendants have demanded a jury trial in this matter and
Lawlor is not able to properly conduct witness examinations or
have his own evidence admitted at trial; 4) he is unsure of how
to comply with discovery requests; and 5) he does not have
access to sufficient legal resources to adequately represent
himself in this matter.

While the court understands that the

factors set forth by Lawlor make it more difficult for him to

2

prosecute this action than if he were to have counsel, that fact
does not distinguish Lawlor from the majority of prisoners who
pursue pro se civil rights actions in the federal courts.
Lawlor’s specific reasons for requesting counsel are common to
most pro se prisoners, and thus do not constitute extraordinary
circumstances.

Should this matter eventually entail an

evidentiary hearing or jury trial, or should evidence,
discovery, or other issues in this case become unusually
complicated, Lawlor may renew his request for counsel at that
time.

Lawlor has not sufficiently asserted that he will be

denied due process of law in the absence of an order appointing
counsel in this matter at this time.
That said, the court notes that although judges, other
court personnel, and opposing counsel are not able to give
Lawlor legal advice, Lawlor is welcome to ask questions at the
preliminary pretrial, either seeking clarification of any
terminology he does not understand, or general procedural
questions.

Further, the court has every confidence that counsel

for defendants will make every effort, consistent with effective
representation of his clients, to use plain language rather than
“legalese” in court filings so as not to unnecessarily confound
the plaintiff in this matter.

3

To the extent Lawlor is attempting to assert new claims of
negligence, interference with legal mail, or inadequate access
to legal research materials, he must do so in a separately filed
motion to amend.

This motion will not be construed to contain a

request to add claims in this matter.

Lawlor’s references to

those issues are considered here only insofar as they are
asserted in support of his request for appointed counsel.

Conclusion
For the foregoing reasons, the motion for court-appointed
counsel (doc. no. 24) is DENIED.

The denial is without

prejudice to Lawlor renewing his request in the future, should
circumstances warrant.
SO ORDERED.

/s/ Landya McCafferty
Landya McCafferty
United States Magistrate Judge
August 15, 2012
cc:

Gary Lawlor, pro se
John A. Curran, Esq.

LBM:jba

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