Opinion
23-cv-13191
07-30-2024
LEROY DESWAN FOSTER, Plaintiff, v. BAILEY, Defendant.
Honorable Thomas L. Ludington
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (ECF NO. 16)
Elizabeth A. Stafford Magistrate Judge
Plaintiff Leroy Deswan Foster moves for appointment of counsel. ECF No. 16. Under 28 U.S.C. § 1915, “[t]he court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). Although a district court is vested with broad discretion in determining whether to appoint counsel for an indigent civil litigant, appointment of such counsel is not a constitutional right. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Courts seldom appoint counsel in a civil case absent a showing of “exceptional circumstances.” Id. at 606. Appointment of counsel under § 1915(e)(1) is rare because “there are no funds appropriated to pay a lawyer or to even reimburse a lawyer's expense.” Clarke v. Blais, 473 F.Supp.2d 124, 125 (D. Me. 2007). Thus, there must be a showing of “exceptional circumstances.” Lavado, 992 F.2d at 606.
To determine whether “exceptional circumstances” exist, the Court considers the nature of the case, the party's ability to represent himself, the complexity of the case, and whether the claims being presented are frivolous or have a small likelihood of success. Id. Because courts consider the party's likelihood of success, “[a]ppointment of counsel is almost always denied prior to the exhaustion of dispositive motions.” Dixon v. Kraft, No. CV 16-14439, 2017 WL 11490775, at *1 (E.D. Mich. Mar. 14, 2017), objections overruled, No. 16-14439, 2017 WL 11490776 (E.D. Mich. May 5, 2017).
Foster argues that he needs counsel because he cannot read or write, lacks the legal training necessary to litigate his claims and conduct discovery, and has limited access to the prison's legal writer program. These are not exceptional circumstances. Foster has been able to make his filings with the assistance of the legal writer program and only speculates that he may have difficulties obtaining that assistance during lockdowns. See ECF No. 16, PageID.75. And Foster's sole deliberate indifference claim is not complex. For these reasons, Foster's request to appoint counsel is DENIED WITHOUT PREJUDICE.
NOTICE TO PARTIES ABOUT OBJECTIONS
Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed.R.Civ.P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.