Simpson v. City of Charleston et al
Filing
23
MEMORANDUM OPINION AND ORDER and NOTICE OF INITIAL STATUS CONFERENCE denying Plaintiff's 18 MOTION for Appointment of Counsel, and 20 MOTION to Supress all Evidence Favorable to the Plaintiff; directing that the following dates are fixed as dates and times by or on which certain events must occur: Last day to conduct Rule 26(f) Meeting 12/3/2013; Last day to file report of Rule 26(f) Meeting 12/9/2013; Initial Conference set for 12/13/2013 at 11:00 AM in Huntington before Magistrat e Judge Cheryl A. Eifert; the parties are advised that the provisions of Fed. R. Civ. P 14 and 15 with respect to the time in which to file third-party claims and to amend pleadings without leave of the court are not affected by this Order and Notice. Signed by Magistrate Judge Cheryl A. Eifert on 11/20/2013. (cc: Plaintiff; attys; any unrepresented party) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CORY A. SIMPSON,
Plaintiff,
v.
Case No.: 2:13-cv-08766
CITY OF CHARLESTON and
OFFICER B.A. LIGHTNER,
Defendants.
MEMORANDUM OPINION AND ORDER and
NOTICE OF INITIAL STATUS CONFERENCE
Pending before the court are Plaintiff’s Motion for the Appointment of Counsel,
(ECF No. 18), and Plaintiff’s Motion to Suppress all Evidence Favorable to the Plaintiff,
(ECF No. 20). Having considered the motions, the court DENIES them.
Although the court may, in its discretion, request an attorney to represent
Plaintiff in this § 1983 action, he has no constitutional right to counsel. 28 U.S.C. §
1915(e)(1) (2010); see also Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975). The
United States Court of Appeals for the Fourth Circuit has made it clear that the
appointment of counsel in civil actions “should be allowed only in exceptional cases.”
Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Whether sufficient circumstances
exist to justify the court’s involvement in arranging pro bono representation depends on
the complexity of the claims and the ability of the indigent party to present them.
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984); see also Branch v. Cole, 686
F.2d 264, 266. (“[N]o comprehensive definition of exceptional circumstances is
practical. The existence of such circumstances will turn on the quality of two basic
factors-the type and complexity of the case, and the abilities of the individuals bringing
it.” (footnote omitted)). Here, Plaintiff fails to present evidence or argument supporting
the conclusion that his case meets the high threshold necessary for court-arranged
counsel. Furthermore, Plaintiff has made no reported effort to look for an attorney
willing to take the case on a contingent fee basis. Instead, Plaintiff simply argues that
counsel should be appointed because he is not trained in the law and does not have the
funds to hire an attorney. Unfortunately, these limitations do not merit the appointment
of counsel at this stage of the proceedings. The claims asserted by Plaintiff are simple,
and he has proven himself capable of presenting them. For these reasons, the motion for
appointment of counsel is denied.
Plaintiff’s motion to suppress evidence is likewise denied because it is nothing
more than a request for production of documents, which should be directed to
Defendants after the initiation of discovery. Therefore, pursuant to L.R. Civ. P. 16.1 and
Fed R. Civ. P. 16, it is hereby ORDERED that the following dates are fixed as the dates
and times by or on which certain events must occur:
12/3/2013
The last day upon which parties shall meet in person or by
telephone to conduct a Rule 26(f) meeting. Defendants shall be
responsible for arranging the meeting/conference.
12/9/2013
Last day to file report of Rule 26(f) meeting—See Scheduling Order
Worksheet available on the Court’s website at L.R. Civ. P. 16.1.
12/13/2013
The undersigned United States Magistrate Judge will hold an initial
scheduling/status conference. Lead counsel and all unrepresented
parties shall be present in person at 11:00 a.m. at the Sidney L.
Christie Federal Building and United States Courthouse, 1st Floor
Courtroom, 845 Fifth Avenue, Huntington, West Virginia. The
parties shall be prepared to discuss the following:
1. The discovery to be completed and the amount of time necessary
for completion;
2. Strategies to simplify the issues, including potential elimination
of claims or defenses; and
3. The possibility of settlement.
NOTICE
This matter has been referred to the undersigned United States Magistrate Judge
pursuant to Standing Order for total pretrial management and submission of proposed
findings of fact and recommendations for disposition. (ECF No. 4). Pursuant to L.R. Civ.
P. 16.1 and 73.1, the parties are informed of their opportunity to consent to the exercise
by a Magistrate Judge of civil jurisdiction over the case, including entry of judgment, as
authorized by 28 U.S.C. § 636. The parties may consent by filing a Consent to
Jurisdiction by a United States Magistrate Judge (Fed. R. Civ. P. Form 34), or by so
indicating on the Report of Parties Planning Meeting and Scheduling Order Worksheet,
all of which are available on the court’s website.
The parties are advised that the provisions of Fed. R. Civ. P. 14 and 15 with
respect to the time in which to file third-party claims and to amend pleadings without
leave of court are not affected by this Order and Notice.
The Clerk is instructed to provide a copy of the Order and Notice to the Plaintiff,
counsel of record, and any unrepresented party.
ENTERED: November 20, 2013.
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