Gray v. Prince, et al

Filing 101

ORDER Denying 100 Motion to Appoint Counsel Within Thirty Days; Denying 100 Motion to Lift Stay. Signed by Judge Thomas L. Parker on 5/26/2022. (JRS)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DEANDREA GRAY,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendant.

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No. 2:17-cv-02346-TLP-tmp
JURY DEMAND

ORDER DENYING MOTION TO APPOINT COUNSEL WITHIN THIRTY DAYS
AND DENYING MOTION TO LIFT STAY
Plaintiff DeAndrea Gray brings Bivens and Federal Tort Claims Act (“FTCA”) claims
against Defendants United States of America, Edna Prince, F. Cabanero, Sharonda Dobbins
Branch, and Dustin Bowden. 1 (ECF No. 29-1 at PageID 178–79.) In January 2021, Plaintiff
moved for appointment of counsel. (ECF No. 79.) And the Court granted the motion. (ECF No.
81 at PageID 771–72.) Since then, Defendant Bowden has moved to dismiss the complaint for
lack of jurisdiction. (ECF No. 88.) Plaintiff moved to extend his time to respond until the Clerk
could engage counsel to represent him. (ECF No. 98.) And the Court granted the motion. (ECF
No. 99.) Plaintiff now moves to appoint counsel within thirty days and to lift the stay of
proceedings. (ECF No. 100.) For the reasons below, the Court DENIES Plaintiff’s motions.

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Plaintiff also sued the Director of the Bureau of Prisons, Hugh Hurwitz, and members of the
U.S. Public Health Service (“PHS”), Sheena Bailey, Cynthia Gaia, and Frank Hargrove (“PHS
Defendants”). This Court dismissed Defendant Hurwitz in its order on Defendants’ first motion
to dismiss. (ECF No. 66 at PageID 434.) The Sixth Circuit affirmed. (ECF No. 74 at PageID
461.) And this Court dismissed the PHS Defendants in its order on Defendants’ second motion
to dismiss, which alternatively sought summary judgment. (ECF No. 81 at PageID 771–72.)

Since the Court directed the Clerk to engage counsel to represent Plaintiff, both the Court
and the Clerk have been working to obtain counsel willing to represent Plaintiff. But the process
for obtaining counsel to represent indigent litigants in civil cases is different from criminal cases,
where defendants have a constitutional right to counsel. See United States v. Bryant, 579 U.S.
140, 149 (2016) (“The Sixth Amendment to the U.S. Constitution guarantees a criminal
defendant in state or federal court ‘the Assistance of Counsel for his defence.’” (citing Gideon v.
Wainwright, 372 U.S. 335, 339 (1963))). In criminal cases, this Court appoints counsel to
represent defendants under the district’s Criminal Justice Act Plan. See 18 U.S.C. § 3006A; Fed.
R. Crim. P. 44. For criminal defendants who qualify under that plan, the Court appoints counsel
from either the Office of the Federal Public Defender or from the Criminal Justice Act Panel. 2
See LR 72.1(b)(4).
In civil cases, “[t]he court may request an attorney to represent any person unable to
afford counsel.” 28 U.S.C. § 1915(e)(1). And in this case, the Court has directed the Clerk to
engage counsel to represent Plaintiff under § 1915(e)(1). (ECF No. 81 at PageID 771.) But
“[w]hile the statute permits a court to exercise its discretion to seek the appointment of counsel
for an indigent person, civil litigants have no constitutional right to the appointment of counsel at
government expense.” Luis v. Zang, No. 1:12-cv-629, 2017 WL 432838, at *2 (S.D. Ohio Feb.
1, 2017) (citing Anderson v. Sheppard, 856 F.2d 741 (6th Cir. 1988)); see also Lanier v. Bryant,
332 F.3d 999, 1006 (6th Cir. 2003) (“[T]he appointment of counsel in a civil proceeding is not a
constitutional right.”). Because § 1915(e)(1) authorizes the Court only to “request” that an
attorney represent an indigent litigant, the Court “has no power to appoint counsel unless counsel
is also willing to serve.” Luis, 2017 WL 432838, at *2 (citing Mallard v. United States District

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See https://www.tnwd.uscourts.gov/pdf/content/CriminalJusticeActPlan.pdf.
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Court, 490 U.S. 296 (1989)). Indeed, that statute does not “license compulsory appointments of
counsel” but “merely empowers a court to request an attorney to represent a litigant.” Mallard,
490 U.S. at 301–02.
The Luis court explained the situation more fully:
One of the many reasons that this Court cannot appoint counsel to the vast
majority of pro se litigants who seek such appointments is that the Court does not
have either funds from which counsel can be compensated, or a ready list of
attorneys who are eager to take on such cases without compensation. Importantly,
this Court has no power to appoint counsel unless counsel is also willing to serve,
because § 1915(e)(1) only authorizes a “request” that an attorney represent an in
forma pauperis litigant. Mallard v. United States District Court, 490 U.S. 296
(1989)). Congress generally provides funding for the appointment of defense
counsel only in criminal cases, in which the right to counsel is secured by the Sixth
Amendment of the United States Constitution. No similar right to counsel exists
for an individual who voluntarily initiates a civil suit for money damages, no matter
how meritorious a plaintiff may believe his or her claim to be. A small number of
federal statutes, including those relating to the representation of social security
claimants and some civil rights laws, provide for compensation of attorney’s fees
in civil cases—typically, at the conclusion of a case if a plaintiff's attorney has
prevailed on the merits. However, such cases are an exception to the American rule
that each side in litigation must bear his or her own litigation costs.
Luis, 2017 WL 432838, at *2.
This district maintains a Civil Pro Bono Panel. See LR 83.7. But there is a much smaller
pool of attorneys who take on pro bono civil matters on behalf of indigent parties compared to
the CJA panel available in the criminal context. And as explained above, the Court cannot
require any attorney to take on Plaintiff’s case under § 1915(e)(1). See Luis, 2017 WL 432838,
at *2. But the Court has called lawyers and asked that they represent Plaintiff. So far, none has
been able to take the case. As stated above, that statute “does not authorize coercive
appointments of counsel.” Mallard, 490 U.S. at 309. As a result, the Court cannot grant
Plaintiff’s motion to appoint counsel within thirty days. The Court therefore DENIES that

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motion. The Court respectfully DIRECTS the Clerk to continue to try to engage counsel to
represent Plaintiff.
Plaintiff also moves to lift the stay of proceedings. (ECF No. 100 at PageID 987.) The
Court extended Plaintiff’s time to respond to the pending motion to dismiss until the Clerk
engages counsel to represent Plaintiff. (ECF No. 99.) Plaintiff’s request to lift this stay appears
to be conditioned on first obtaining counsel. In other words, Plaintiff’s motion does not request
to proceed with this case without counsel. But it is unclear how long it will be before the Clerk
can find counsel to represent Plaintiff. And so if Plaintiff wishes to proceed with this case and
respond to the pending motion to dismiss pro se, he may move again to lift the stay on that
ground. But for now, the Court DENIES Plaintiff’s motion to lift stay, so that Plaintiff need not
respond to the pending motion to dismiss without first obtaining representation.
SO ORDERED, this 26th day of May, 2022.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE

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