Buzzard v. Robbins et al

Filing 87

MEMORANDUM OPINION AND ORDER denying 84 MOTION for Appointment of Counsel. Signed by Magistrate Judge Cheryl A. Eifert on 12/3/2014. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
DAVID DEAN BUZZARD, JR.,
Plaintiff,
v.

Case No.: 3:14-cv-25533

JOE DELONG, Executive Director,
West Virginia Regional Jail &
Correctional Facility Authority; et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is Plaintiff’s Motion for the Appointment of Counsel. (ECF No. 84). For
the reasons that follow, the Court DENIES the motion at this time, without prejudice to
reconsideration of Plaintiff’s request for counsel in the future.
As Plaintiff acknowledges in his motion, he has no constitutional right to counsel
in a § 1983 action. 28 U.S.C. § 1915(e)(1) (2010); see also Hardwick v. Ault, 517 F.2d
295, 298 (5th Cir.1975). Although the Court has some discretion to assign counsel in this
case, the United States Court of Appeals for the Fourth Circuit has made it clear that the
assignment of counsel in civil actions “should be allowed only in exceptional cases.”
Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). When determining whether a
particular case rises to that level, the Court must consider the complexity of the claims
in dispute 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 argues that his case meets the definition of “exceptional” for
several reasons. First, his incarceration prohibits him from interviewing witnesses and
conducting a proper investigation to develop the facts. Second, he has not been trained
in the art of cross-examination or in the Federal Rules of Civil Procedure. Finally,
Plaintiff contends that the issues in dispute are complex, and he is incapable of
adequately presenting them. As proof of his position, Plaintiff points to several errors he
has made to date in prosecuting his claims.
While Plaintiff’s incarceration undoubtedly makes it more difficult for him to
pursue his lawsuit, as does his lack of legal training, these limitations do not, in and of
themselves, satisfy the “exceptional” standard and merit the appointment of counsel.
Louis v. Martinez, Case No. 5:08-cv-151, 2010 WL 1484302, at *1 (N.D.W.Va. Apr. 12,
2010). Having reviewed Plaintiff’s filings, and interacted with him at the status
conference, the undersigned finds Plaintiff to be surprisingly knowledgeable of the
relevant law, articulate, and a competent legal writer. Accordingly, Plaintiff is fully
capable of presenting his claims at this stage of the litigation.
Plaintiff expresses concern over having his deposition taken in this civil action
without the guidance of counsel. (See ECF No. 86). In particular, Plaintiff feels that he
should be represented by an attorney when and if counsel for Defendants asks questions
related to Plaintiff’s criminal conduct (past or present). Plaintiff is reminded that he
may assert his Fifth Amendment right against self-incrimination, if appropriate.
Moreover, any questions asked by defense counsel must be relevant to the claims and
defenses at issue in this case. The parties are free to contact the Court during the

deposition if an issue arises as to the legitimacy of the scope of counsel’s questioning.
Fed. R. Civ. P. 30(d)(3).
Therefore, for the reasons stated, Plaintiff’s motion for the appointment of
counsel is DENIED. It is so ORDERED.
The Clerk is instructed to provide a copy of this Order to Plaintiff, counsel of
record, and any unrepresented party.
ENTERED: December 3, 2014