Smith v. West Virginia Regional Jail Authority

Filing 16

MEMORANDUM OPINION AND ORDER denying Plaintiff's 10 MOTION for the Appointment of Counsel. Signed by Magistrate Judge Cheryl A. Eifert on 6/29/2015. (cc: Plaintiff, attys, and any unrepresented party) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JOHN MACK SMITH,
Plaintiff,
v.

Case No. 3:15-cv-03387

JOE DELONG, Executive Director,
WEST VIRGINIA REGIONAL JAIL &
CORRECTIONAL FACILITY AUTHOIRTY,
Defendant.
MEMORANDUM OPINION and ORDER
Pending is Plaintiff’s Motion for the Appointment of Counsel. (ECF No. 10). For
the reasons that follow, the Court DENIES the motion, without prejudice to
reconsideration of Plaintiff’s request for counsel in the future.
Plaintiff has no constitutional right to counsel in an action brought pursuant to
42 U.S.C. § 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 justifies the appointment of counsel on the
grounds that (1) he has been unable to hire an attorney; (2) he has no funds to pay an
attorney; and (3) the defendant can and has retained counsel. Unfortunately, these
reasons do not rise to the level of “exceptional.” Many pro se litigants are unable to find
lawyers willing to take their cases, and many lack funds to hire counsel on an hourly
basis. While Plaintiff’s incarceration undoubtedly makes it more difficult for him to
pursue his lawsuit, as does his lack of legal training, these limitations likewise 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, the undersigned finds Plaintiff to be
capable of presenting his claims at this stage of the litigation.
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: June 29, 2015