Opinion
CIVIL ACTION NUMBER 01-3297.
June 3, 2002.
MINUTE ENTRY
PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (Rec. doc. 6) DENIED
A telephone hearing was held on May 6, 2002 for the purpose of determining whether plaintiff is entitled to appointment of counsel to represent him in this matter.
Plaintiff has filed a petition for review of the Merits Systems Protection Board's final order denying him retirement benefits. During the telephone hearing, plaintiff stated that he had worked for the federal government for twenty-two years, is on social security disability, and does not have sufficient assets to retain an attorney to represent him. Plaintiff had not filed in the record the decision of the Administrative Judge from which he was appealing. Since that time, on May 24, 2002, plaintiff filed the decision rendered by Carol J. Teather, Administrative Judge, on November 9, 2000 which provides detailed reasons for the denial of a retirement annuity under the Civil Service Retirement System.
An indigent plaintiff has no right to counsel in a civil rights action unless exceptional circumstances exist. Norton v. E.U. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997). The Court has discretion to appoint counsel if doing so would advance the proper administration of justice.Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). The term "exceptional circumstances" generally relates to the type and complexity of the case and the ability of the plaintiff to present his claim.Robbins v. Maggio, 750 F.2d 405, 412 (5th Cir. 1985).
The following factors should be considered when ruling on a request for appointment of counsel in a Section 1983 case: (a) the type and complexity of the case; (b) whether the indigent is capable of presenting his case adequately; (c) whether he is in a position to investigate his case adequately; and (d) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross-examination. Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992); Ulmer, 691 F.2d at 213. The district court should also consider whether appointment of counsel would be of service to the plaintiff, the court and the defendant by sharpening the issues of the case. Id.
Here, the case is not complex and appears to be capable of being decided based on the record of plaintiffs employment. Thus, it appears that plaintiff is capable of presenting his case adequately and there is very little, if any, investigation necessary for presentation of his case. Finally, it appears that there will be little, if any, conflict in testimony.
Accordingly, having considered the factors suggested, IT IS ORDERED that plaintiffs motion for appointment of counsel is DENIED.