Gaines v. Tomasetti et al

Filing 109

ORDER denying Plaintiff's 100 Motion for New Trial and 108 Motion to Appoint Counsel. Signed by Chief Judge Robert J. Conrad, Jr on 3/29/13. (Pro se litigant served by US Mail.)(ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:09-cv-217-RJC
DARRELL GAINES,

)
)
Plaintiff,
)
)
v.
)
)
JUSTIN CLINARD,
)
)
Defendant.
)
____________________________________)

ORDER

THIS MATTER is before the Court on Plaintiff’s motion for a new trial, (Doc. No.
100), and his motion to appoint counsel. (Doc. No. 108)
I.

BACKGROUND
On April 26, 2012, the Court entered an Order dismissing all of the defendants in this

matter save for Defendant Clinard. The Court found that Plaintiff had sufficiently alleged a
Fourth Amendment claim against Clinard for unlawful arrest. The Court noted that at the Rule
12(b)(6) stage of the litigation, Plaintiff’s allegations, when accepted as true, tended to show that
Clinard arrested Plaintiff while on Housing Authority property in Asheville, North Carolina, with
knowledge that Plaintiff was not in fact banned from such property. (Doc. No. 94 at 7-8).
On May 10, 2012, the Clerk of Court filed Plaintiff’s Notice of Appeal from the Court’s
Order to the United States Court of Appeals for the Fourth Circuit. On October 2, 2012, the
Court dismissed Plaintiff’s appeal after finding that this Court’s Order was “neither a final order
nor an appealable interlocutory or collateral order.” Gaines v. Tomasetti, No. 12-6885 (4th Cir.
Oct. 2, 2012). (Doc. No. 101). The Court issued its mandate on October 24, 2012. (Doc. No.

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104). On November 6, 2012, Defendant Clinard, by and through counsel, filed his answer to
Plaintiff’s amended complaint.
II.

MOTION FOR A NEW TRIAL
On February 22, 2013, the Court entered a Pretrial Order and Case Management Plan

which set deadlines for discovery, April 30th, and the filing of dispositive motions, May 30,
2013. (Doc. No. 1-7). The Court has not yet set this case for trial, and depending on the filing of
dispositive motions, the case may or may not proceed to trial. Plaintiff’s motion for a new trial,
(Doc. No. 100), will be denied without prejudice, subject to the Court determining whether this
case may proceed to trial.
III.

MOTION FOR COUNSEL
In his motion Plaintiff requests the appointment of counsel to assist him with discovery

and in complying with the “Federal Rules.” (Doc. No. 108). The law is clear that a civil litigant
does not have a constitutional right to counsel. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th
Cir. 1984), abrogated in part on other grounds by Mallard v. U.S. Dist. Ct. of Iowa , 490 U.S.
296, 298 (1989) (noting that 28 U.S.C. § 1915 does not authorize the compulsory appointment of
counsel); see also Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968) (noting that obtaining
the assistance of counsel in a civil case “is a privilege
not a right.”).
Instead, pursuant to 28 U.S.C. § 1915(e)(1), the Court has discretion to request the
assistance of an attorney for an indigent person in a civil case. In order to warrant the Court’s
exercise of this discretion, the litigant must demonstrate the existence of exceptional
circumstances. Whisenant, 739 F.2d at 163. The existence of exceptional circumstances depends

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upon “‘the type and complexity of the case, and the abilities of the individuals bringing it.’” Id.
(quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982)). A plaintiff can show exceptional
circumstances by demonstrating that he “has a colorable claim but lacks the capacity to present
it.” Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978).
The Court has examined Plaintiff’s amended complaint, and finds that Plaintiff has
adequately presented his allegations to the Court. Further, the central issue presented is whether
there is sufficient evidence that Defendant Clinard knew Plaintiff was not in fact banned from
Housing Authority property at the time of Plaintiff’s arrest. This does not present as an overly
complex issue and Plaintiff’s motion for appointment of counsel will therefore be denied in the
Court’s discretion.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for a New Trial is DENIED

without prejudice. (Doc. No. 100)
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel is DENIED.
(Doc. No. 108).
Signed: March 29, 2013

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