United States District Court, E.D. Michigan, Southern Division
DAVID ST. ANN, Plaintiff
TODD MCLEAN, et al., Defendants.
Levy District Judge
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION FOR APPOINTMENT OF COUNSEL (DE 32)
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE
matter is before the Court for consideration of Plaintiff
David St. Ann's motion for appointment of counsel. (DE
32.) For the reasons that follow, Plaintiff's motion is
DENIED WITHOUT PREJUDICE.
a state prisoner who is proceeding in forma
pauperis, brings this lawsuit under 42 U.S.C. §
1983 against various correctional officials, originally
alleging claims regarding his remaining at Level IV (or
maximum security/ disciplinary unit) following the February
14, 2014 expiration of his detention and loss of privileges.
The Court has granted in part Defendants' motion for
summary judgment (DE 29), which resulted in the dismissal of
many of Plaintiff's original causes of action. Recently,
however, the Court granted Plaintiff's second motion for
leave to amend his complaint, which added another Defendant
and a retaliation cause of action. (DE 30.)
filed this motion for appointment of counsel on November 4,
2016. (DE 32.) In his motion, he asks the court to appoint an
attorney in this civil matter because he is unable to afford
counsel and his imprisonment impinges on his ability to
litigate the case successfully.
preliminary matter, although Plaintiff styles his motion as
one for appointment of counsel, the Court does not have the
authority to appoint a private attorney for Plaintiff in this
civil matter. Proceedings in forma pauperis are
governed by 28 U.S.C. § 1915, which provides that
“[t]he court may request an attorney to
represent any person unable to afford counsel.” 28
U.S.C. § 1915(e)(1) (emphasis added). However, even if
the circumstances of Plaintiff's case convinced the Court
to engage in such a search, “[t]here is no right to
recruitment of counsel in federal civil litigation, but a
district court has discretion to recruit counsel
under 28 U.S.C. § 1915(e)(1).” Dewitt v.
Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014)
(emphasis added); see also Olson v. Morgan, 750 F.3d
708, 712 (7th Cir. 2014) (“Congress hasn't provided
lawyers for indigent prisoners; instead it gave district
courts discretion to ask lawyers to volunteer their services
in some cases.”).
Supreme Court has held that there is a presumption that
“an indigent litigant has a right to appointed counsel
only when, if he loses, he may be deprived of his physical
liberty.” Lassiter v. Dep't of Soc.
Servs., 452 U.S. 18, 26-27 (1981). With respect to
prisoner civil rights cases in particular, the Court of
Appeals for the Sixth Circuit has held that “there is
no right to counsel. . . . The appointment of counsel in a
civil proceeding is justified only by exceptional
circumstances.” Bennett v. Smith, 110 F.
App'x 633, 635 (6th Cir. 2004).Accordingly, although the
Court has the statutory authority to request counsel for
pro se plaintiffs in civil cases under 28 U.S.C.
§ 1915(e), the exercise of this authority is limited to
evaluating a matter for “exceptional circumstances,
” a court should consider: (1) the probable merit of
the claims, (2) the nature of the case, (3) the complexity of
the legal and factual issues raised, and (4) the ability of
the litigant to represent him or herself. Lince v.
Youngert, 136 F. App'x 779, 782 (6th Cir. 2005);
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993); Lanier v. Bryant, 332 F.3d 999, 1006 (6th
the foregoing authority, Plaintiff has not described
circumstances sufficiently exceptional to justify a request
for appointment of counsel. Plaintiff contends that he is
indigent and unable to afford counsel and his imprisonment
will limit his ability to litigate this case, especially his
ability to engage in discovery. Such factors would apply to
nearly every pro se prisoner proceeding in forma
pauperis, and do not constitute extraordinary
circumstances. Further, despite Plaintiff's claim to the
contrary, the operative claims do not appear to involve
especially complex issues. Moreover, Plaintiff's
pleadings illustrate his ability to articulate his claims in
a coherent manner and even the instant motion is clear in
outlining his reasons for requesting the appointment of
counsel. Finally, there is no indication that Plaintiff will
be deprived of his physical liberty over and above his
current sentence if he loses this civil case.
at this time, Plaintiff's motion to appoint counsel is
DENIED WITHOUT PREJUDICE. (DE 8.) Plaintiff may petition the
Court for the recruitment of pro bono counsel if
this case survives dispositive motion practice, proceeds to
trial, or if other circumstances demonstrate such a need in