United States District Court, E.D. Michigan, Southern Division
Victoria A. Roberts District Judge.
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION FOR APPOINTMENT OF COUNSEL (DE 3)
UANTHONY P. PATTI NITED STATES MAGISTRATE JUDGE.
matter is before the Court for consideration of Plaintiff
Jerry Anderson's motion for appointment of counsel. (DE
3.) For the reasons that follow, Plaintiff's motion is
DENIED WITHOUT PREJUDICE.
a state prisoner who is proceeding in forma
pauperis, brings this prisoner civil rights lawsuit
against three defendants, Colter Furst, Michael Thomas and
Nathan Ellis, all Michigan State Police Troopers, alleging
they violated his rights under the Fourth Amendment by using
excessive force during his arrest on September 4, 2015. (DE
1.) He seeks injunctive and declaratory relief, in addition
to compensatory and punitive damages. (Id.) All
Defendants have been served and have filed their Answer. (DE
filed this motion for appointment of counsel on August 14,
2017. (DE 3.) In his motion, he asks the court to appoint an
attorney in this civil matter because of his lack of money
and legal experience, his limited access to the law library,
and the complexity of the issues in this matter. Judge
Roberts issued an order referring all non-dispositive
pretrial proceedings to me on October 26, 2017. (DE 16.)
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 has
“limited knowledge of the law, ” that this case
will require “considerable discovery” and
involves conflicting testimony between Defendants and
Plaintiff, and that the issues he presents to the Court are
complex, requiring assistance of counsel. Such factors would
apply to nearly every pro se prisoner proceeding
in forma pauperis, and do not constitute exceptional
circumstances. Most non-lawyers have only limited knowledge
of the law. Many cases require considerable discovery. Nearly
all cases involve conflicting testimony between the
despite Plaintiff's claim to the contrary, the claims in
Plaintiff's complaint to not appear to be particularly
complex and are ably described by Plaintiff, involving an
allegation of excessive force related to Plaintiff's
September 2015 arrest. Moreover, Plaintiff's Complaint
illustrates his ability to articulate his claims and
adequately communicate his requests to the Court in a
coherent manner, his recently filed affidavit seeking default
(although denied) is cogent and gives reference to meaningful
authorities, and even the instant motion is clear in
outlining his reasons for requesting the appointment of
counsel. (DE 1, 15, 3.) 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 3.) 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.