Higgins v. Upshaw Consulting Services, LLC et al

Filing 112

ORDER denying 110 Motion to Appoint Counsel. Signed by Chief Judge Jeffrey L. Viken on 6/10/19. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5010-JLV

JESSE HIGGINS,
Plaintiff,

ORDER

vs.
UPSHAW CONSULTING SERVICES,
LLC, and CONTINENTAL RESOURCES,
INC., and FLUID END SALES INC.
D/B/A FIVE STAR RIG & SUPPLY,
Defendants.
Plaintiff brought this personal injury diversity action in February 2016.
(Docket 1).

The court allowed plaintiff’s counsel to withdraw after plaintiff was

indicted in 2018.

(Docket 89).

According to the South Dakota Department of

Corrections, plaintiff is incarcerated until March 2030. 1

Defendant Fluid End

Sales, Inc., filed a motion for summary judgment on February 13, 2019.
(Docket 93).

The court ordered plaintiff to respond to the summary judgment

motion by May 20, 2019.
counsel.

Plaintiff instead filed a motion requesting appointed

(Docket 110).

“[P]ro se litigants have neither a constitutional nor a statutory right to
appointed counsel in civil cases.” Patterson v. Kelley, 902 F.3d 845, 850 (8th
Cir. 2018).

“Instead, district courts may appoint counsel in such cases if

1Plaintiff

may be eligible for parole in 2025. See S.D. Dep’t. of Corr.
Offender Locator, available at https://doc.sd.gov/adult/lookup/ (last accessed
June 3, 2019).

convinced that an indigent plaintiff has stated a non-frivolous claim . . . and
where the nature of the litigation is such that plaintiff as well as the court will
benefit from the assistance of counsel[.]” Id. (citing 28 U.S.C. § 1915(e))
(quotation omitted).

“The relevant criteria for determining whether counsel

should be appointed 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.”
794 (8th Cir. 2006).

Phillips v. Jasper Cty. Jail, 437 F.3d 791,

However, § 1915(e) “does not authorize the federal courts

to make coercive appointments of counsel.” Mallard v. U.S. Dist. Court for S.
Dist. of Iowa, 490 U.S. 296, 310 (1989).
Plaintiff declares he is unable to afford retained counsel.

(Docket 110).

He unsuccessfully contacted four local law firms in an attempt to obtain counsel,
presumably on a contingency fee basis.

Id.

Plaintiff’s mother wrote a letter to

the court in which she stated she contacted a dozen different attorneys, none of
whom would take plaintiff’s case.

(Docket 108).

Given plaintiff’s incarceration

and indigency, as well as the complexity of his personal injury claims, the court
contacted additional local attorneys to gauge their interest in an appointment to
this case.

No attorney would accept appointment.

The court cannot force an

attorney to represent plaintiff. Mallard, 490 U.S. at 310.
Accordingly, it is
ORDERED that plaintiff’s motion for appointment of counsel (Docket 110)
is denied without prejudice.

If plaintiff can locate an attorney willing to
2

represent him, he may move the court to appoint the attorney on a pro bono
basis.
IT IS FURTHER ORDERED that plaintiff respond to defendant Fluid End
Sales’ motion for summary judgment (Docket 93) by July 15, 2019.

Failure to

respond to the motion or to seek an extension of this deadline may result in
summary judgment being entered in favor of defendant Fluid End Sales.
Dated June 10, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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