United States District Court, E.D. Michigan, Southern Division
L. District Judge.
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION FOR APPOINTMENT OF COUNSEL (DE 25)
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court for consideration of Plaintiff
Tyrone Price's motion for appointment of counsel. (DE
25.) For the reasons that follow, Plaintiff's motion is
DENIED WITHOUT PREJUDICE.
a federal prisoner who is proceeding in forma
pauperis, brings this prisoner civil rights lawsuit
against three defendants, Sheriff Scott Stephenson, Deputy
Richard Speich, and Lieutenant Jeffrey Derocher, alleging
they violated his rights under the First Amendment by opening
his legal mail outside of his presence and by holding his
outgoing legal mail while he was housed at the Midland County
Jail. (DE 1.) He asks the Court to “sue and
prosecute” because his Constitutional rights were
filed this motion for appointment of counsel on June 26,
2016. (DE 25.) In his motion, he asks the court to appoint an
attorney in this civil matter because of his of lack of legal
experience and the complexity of the issues in this matter.
Judge Ludington issued an order referring all pretrial
proceedings to me on January 2, 2017. (DE 10.)
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
Fed.Appx. 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 Fed.Appx. 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
“a layman with law” with “no experience,
” and that his issue presented to the Court is complex,
requiring assistance of counsel. 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, Plaintiff has on several occasions illustrated his
ability to articulate his claims in a coherent manner and
provide sophisticated briefing to this Court- in his
Complaint, discovery motions, and his response to
Defendant's motion for summary judgment-and even the
instant motion is clear in outlining his reasons for
requesting the appointment of counsel. Moreover, contrary to
Plaintiff's assertion, the operative claims do not appear
to involve novel or especially complex issues. 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 25.) 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 the future.