Opinion
No. 2:03-CV-0209.
March 3, 2005
ORDER DENYING APPOINTMENT OF COUNSEL
Plaintiff VINCENT WILEY JAMES, acting pro se, filed his Motion for Appointment of Counsel, on April 21, 2004.
Plaintiff requests appointment of counsel in the above-referenced and numbered cause. Plaintiff argues he has only a G.E.D., lacks knowledge of the law and the skills of a lawyer, has filed complicated claims for which he has requested a jury trial, has been diagnosed with bipolar disorder schizophrenia and an anti-social disorder and is on medication. Plaintiff further argues the recent death of his mother has left him in need of counseling and additional medication which sometimes affects his comprehension. Plaintiff has attached a list of his medications and medication information for patients.
At the outset, the Court notes that plaintiff has not shown any inability to set forth his claims for relief. The instant motion reveals plaintiff possesses the ability to reason and express himself in an acceptable fashion, as well as anticipate and produce evidence appropriate to support his requests for relief. Thus, at this stage, plaintiff does not appear to need the assistance of counsel. Further, as the Report and Recommendation which issued in this cause shows, this case is not likely to proceed to jury trial. Therefore, plaintiff has not shown that any extraordinary circumstances are involved which would justify the appointment of counsel without charge to plaintiff.
The Magistrate Judge further notes that almost all incarcerated pro se civil rights plaintiffs request the appointment of counsel. Obviously, the Court cannot appoint counsel to all pro se litigants who request it.
Two hundred and sixty-one prisoner petitions were filed by prisoners in the Amarillo Division during the Court's statistical year 2003-2004, 146 of which were prison civil rights cases. This figure, plus the criminal cases requiring the appointment of counsel present far more cases than the Amarillo Bar could absorb if counsel were to be appointed to all who request such.
In making the determination as to whether to appoint counsel pursuant to 28 U.S.C. § 1915, the Court may base its decision regarding the appointment of counsel on several factors, including:
1. Type and complexity of case;
2. The prisoner's ability adequately to present and investigate his case;
3. The presence of evidence which largely consists of conflicting testimony so as to require skilled presentation of evidence and then cross-examination; and,
4. The likelihood that appointment will benefit petitioner, the Court, and the defendants by "shortening the trial and assisting in just determination."Parker v. Carpenter, 978 F.2d 190 (5th Cir. 1992) (citing Murphy v. Kellar, 950 F.2d 290, 293 n. 14 (5th Cir. 1992), (quoting Cooper v. Sheriff, Lubbock County, Texas, 929 F.2d 1078, 1084 (5th Cir. 1991)).
Based upon the four factors recited above, it is the opinion of the Magistrate Judge that this case is no different nor any more complex than the majority of the § 1983 filings in this Court. Further, as indicated above, the prisoner has been able to adequately present and investigate his case to date. There has been nothing in this case to indicate that any skill in the presentation of evidence or questioning of witnesses is necessary, nor is there any basis to believe that appointment of counsel will benefit the petitioner, the Court, and the defendants by "shortening the trial and assisting in a just determination."
While the Court may request counsel to represent an indigent litigant pursuant to Title 28 U.S.C. § 1915, the Court may not pay counsel unless the plaintiff succeeds in being the "prevailing party." The inability of the Court to pay counsel, however, is surmountable. There are attorneys who practice before this Court who are willing to donate their time and represent a plaintiff without remuneration if the Court so requests. More critical than the inability of the Court to pay these attorneys, is the inability of the Court to reimburse such attorney for any expenses or costs associated with litigation. An appointed attorney in a case such as this is faced with financing the cost of the litigation out of his pocket, or foregoing certain avenues of discovery one might normally expect counsel to engage in.
Only where a case presents exceptional circumstances is a trial court required to appoint counsel for an indigent plaintiff asserting a claim under § 1983. Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982) ( per curiam). While counsel are necessary and are "appointed" in some cases, it is truly the "extraordinary" case in which appointment of counsel is required to assist the parties and the Court in resolving the issues raised.
A civil rights complainant has no automatic right to the appointment of counsel. Branch v. Cole, 686 F.2d 264 (5th Cir. 1982). Moreover, the Court notes the express language of Title 28, U.S.C. § 1915(d) provides:
The court may request an attorney to represent any (person claiming in forma pauperis status) unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious, 28 U.S.C. § 1915(d). The courts are not empowered by section 1915(d) to make compulsory appointments in civil actions. Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 301-02, 109 S.Ct. 1814, 1818, 104 L.Ed.2d 318 (1989).
For the reasons set forth above, plaintiff's motion for appointment of counsel is DENIED.
IT IS SO ORDERED.