Miles v. Shelby County Jail et al

Filing 15

ORDER DENYING 7 MOTION TO APPOINT COUNSEL, DENYING 13 MOTION TO RENDER DECISION BY DEFAULT, AND DIRECTING CLERK TO ENTER DEFAULT OF DEFENDANT CONNOLLY. Signed by Judge James D. Todd on 9/22/2020. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BENJAMIN F. MILES, IV,
Plaintiff,
VS.
SHELBY COUNTY CRIMINAL
JUSTICE CENTER, ET AL.,
Defendants.

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No. 19-2241-JDT-cgc

ORDER DENYING MOTION TO APPOINT COUNSEL,
DENYING MOTION TO RENDER DECISION BY DEFAULT, AND
DIRECTING CLERK TO ENTER DEFAULT OF DEFENDANT CONNOLLY

The Court issued an order partially dismissing the pro se civil complaint filed by the
prisoner Plaintiff, Benjamin F. Miles, IV, and directing that process be issued for the three
remaining Defendants: Lt. A. Connolly and Corrections Officers Taliha Barker and Kimberly
White. (ECF No. 6.) Shortly thereafter, Plaintiff filed a motion to appoint counsel. (ECF No. 7.)
Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any
person unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is
not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd
v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel
appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th
Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . . . .”).

Appointment of counsel is “a privilege that is justified only by exceptional circumstances.”
Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted).
“In determining whether ‘exceptional circumstances’ exist, courts have examined the type
of case and the abilities of the plaintiff to represent himself.

This generally involves a

determination of the complexity of the factual and legal issues involved.” Id. at 606 (internal
quotation marks and citations omitted). Appointment of counsel is not appropriate when a pro se
litigant’s claims are frivolous or when his chances of success are extremely slim. Id. (citing Mars
v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963,
965 (6th Cir. 2009) (same). “[I]n contrast to criminal defendants, civil litigants unable to afford
counsel cannot ordinarily” have counsel appointed unless “there is a risk of loss of liberty, as in
mental commitment or juvenile delinquency proceedings.” Iannaccone v. Law, 142 F.3d 553, 556
(2d Cir. 1998), cited in Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002).
The only reasons Miles offers to justify the appointment of counsel are his incarceration
and indigence, his lack of legal experience, and the fact that if the case were to go to trial, counsel
would be better able to present evidence and cross examine witnesses. (ECF No. 7 at PageID 31.)
However, incarceration and lack of legal knowledge and experience are not “exceptional
circumstances” that warrant appointing counsel. Miles therefore has not satisfied his burden of
demonstrating that the Court should exercise its discretion to appoint counsel, and his motion is
DENIED.
Miles has also moved the Court to render a decision by default judgment in this case due
to the failure of any Defendant to answer the complaint. (ECF No. 13.)
With regard to Defendants Barker and White, the motion for default judgment is not well
taken because neither Defendant has been served with process. On February 28, 2020, the U.S.

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Marshal returned unexecuted the summonses issued for these Defendants. (ECF No. 11.) The
Marshal noted on the returns that Barker was on medical leave and that White is no longer
employed at the Shelby County Criminal Justice Center. (Id. at PageID 48 & 50, 51 & 53.)
Separate orders will be issued with regard to obtaining service for Barker and White.
The summons issued for Defendant Connolly was returned executed, with the Marshal
declaring she was personally served on February 25, 2020. (ECF No. 12 at PageID 56.) Connolly
has not answered or otherwise responded to the complaint.
Notwithstanding Connolly’s failure to answer the complaint, Miles’s motion for the Court
to “render a decision” and grant, by default judgment, all the relief he requested is premature.
Rule 55 of the Federal Rules of Civil Procedure governs defaults and default judgments.
Section (a) of Rule 55 deals with entry of a technical default by the Clerk, and section (b) deals
with entry of a default judgment, either by the Clerk or by the Court itself. Entry of a technical
default under section (a) is different from, and must precede, entry of a default judgment under
section (b). See Reed-Bey v. Pramstaller, 607 F. App’x 445, 449 (6th Cir. 2015) (holding district
court properly denied default judgment when the plaintiff failed to first obtain entry of default);
Devlin v. Kalm, 493 F. App’x 678, 685-86 (6th Cir. 2012) (“[I]t was procedurally improper for
Plaintiff to move for entry of default judgment without first obtaining an entry of default from the
clerk.”); O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 352-53 (6th Cir. 2003); Shepard
Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 193 (6th Cir. 1986) (“[E]ntry of
default is just the first procedural step on the road to obtaining a default judgment.”).
Rule 55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise,

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the clerk must enter the party’s default.” The Court will construe Miles’s motion to render a
decision as a motion for the Clerk’s entry of default pursuant to Rule 55(a).
The Marshal’s return of service for Defendant Connolly constitutes proof of service, and it
is clear from the docket that she has failed to answer the complaint in this case. The Clerk therefore
is DIRECTED to enter Defendant Connolly’s default on the record. Once Miles receives the
Clerk’s entry of default, he may move for default judgment by the Court in accordance with Rule
55(b)(2).
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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