United States District Court, E.D. Michigan, Southern Division
Cox, District Judge.
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTIONS FOR APPOINTMENT OF COUNSEL (DE 37, 43)
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court for consideration of Plaintiff
Mack Juide's motions for appointment of counsel. (DE 37,
43.) For the reasons that follow, Plaintiff's motions are
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 alleging claims
regarding violations of the Americans with Disabilities Act
(ADA). The crux of the allegations is that Defendants
retaliated against Plaintiff, who is a paraplegic, when he
filed a grievance regarding a nonfunctioning wheelchair lift.
filed a motion for appointment of counsel on October 25,
2016, contemporaneously with filing his Complaint. (DE 1, 3.)
Judge Gerald Rosen, to whom this case was originally
assigned, issued an order referring all pretrial proceedings
to me on December 12, 2016. (DE 7.) The Court entered an Order
denying Plaintiff's motion for appointment of counsel
without prejudice on December 13, 2016. (DE 9.) Since that
order, the Court has also granted Defendant Kone Inc.'s
motion to dismiss and denied the State Defendants' motion
for summary judgment based on exhaustion of administrative
remedies (DE 29, 41), and Defendant Corizon Health, Inc. has
filed a motion to dismiss for failure to state a claim. (DE
filed a second motion for appointment of counsel on June 16,
2017 (DE 37), and a third motion for appointment of counsel
on September 19, 2017. (DE 43.) In Plaintiff's second and
third motions, he again asks the court to appoint an attorney
in this civil matter because he is unable to afford counsel
and his imprisonment, lack of education, limited access to a
law library and limited knowledge of the law impinge on his
ability to litigate this case successfully. Plaintiff further
argues that this case will involve conflicting testimony and
counsel would better enable Plaintiff to present evidence and
cross-examine witnesses, as well as access records through
the Freedom of Information Act.
preliminary matter, although Plaintiff styles his motions as
ones 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);
Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.
2003); Lavado v. Keohane, 992 F.2d 601, 605-06 (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, that his imprisonment
will limit his ability to litigate this case, especially his
ability to engage in discovery, and that the expertise of an
attorney would be helpful to litigate this case. 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 novel or especially complex issues. Moreover,
Plaintiff has on several occasions illustrated his ability to
articulate his claims and adequately communicate his requests
to the Court in a reasonably clear and organized manner. In
addition, 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. Finally, although
Plaintiff has survived a motion for summary judgment based on
exhaustion of administrative remedies, Defendant Kone
Inc.'s motion to dismiss was granted (DE 29, 41) and
Defendant Corizon Health, Inc. has filed a motion to dismiss
for failure to state a claim (DE 38); thus, not all
dispositive motions on the substantive issues in this matter
have been decided. The Court will not seek counsel for
Plaintiff until all dispositive motions have been decided, if
at all, as was stated in the Court's initial order
denying appointment of counsel. (DE 9.)
at this time, Plaintiff's motions to appoint counsel are
DENIED WITHOUT PREJUDICE. (DE 37, 43.)
Plaintiff may petition the Court for the recruitment of
pro bono counsel if this case survives all
dispositive motion practice, proceeds to trial, or if other
circumstances demonstrate such a need in the future.