Opinion
P-00-CA-024-F
March 12, 2001
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL
Before this Court is the Motion for Appointment of Counsel of Plaintiff David W. Riles, filed June 5, 2000. After due consideration of the facts and the law, the Court is of the opinion that Plainliff's Motion should be DENIED.
FACTS AND PROCEDURAL HISTORY
According to Plaintiff, he began to experience severe allergies in his eyes caused by his outdoor work detail sometime in the fall of 1999. He sought medical treatment at the prison clinic on or about October 7, 1999. He was given eye drops. This failed to alleviate his condition. As his condition allegedly grew worse, he visited the clinic on several more occasions. Plaintiff complained of bubbles forming on his corneas and that his condition was growing worse because he was still required to work outdoors despite his allergies. According to Plaintiff, a condition called "trigeon" developed on his eyes that now requires surgery to remedy. Plaintiff contends that though he sought both medical attention for several months but that he was given ineffective treatment. Prison officials also denied his request to be relieved from outdoor work detail. Plaintiff filed his original complaint on June 5, 2000, alleging that these actions and injuries constitute a denial of his constitutional rights in violation of 42 U.S.C. § 1983.
DISCUSSION
The Court's power to "appoint counsel" is derived from 28 U.S.C. § 1915 (e)(1), which provides that the "court may request an attorney to represent any person unable to afford counsel." It should be emphasized that the Court's power to "appoint" counsel is an imperfect remedy. Under this provision, though the Court may request that an attorney represent an indigent prisoner, the Court can not compel an attorney to do so. Mallard v. United States Dist. Ct. for the S.D. Iowa, 490 U.S. 296, 310 (1989).Unlike a criminal defendant, an indigent civil rights litigant, even a currently incarcerated litigant, does not have a right to the appointment of counsel unless the case presents "exceptional circumstances." Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). The factors that the Court considers in determining whether "exceptional circumstances" exist include: (1) the type and complexity of the case; (2) whether the indigent litigant is capable of adequately presenting his own case; (3) whether the litigant will be able to investigate the case adequately; and (4) whether the nature of the evidence — such as, it consisting largely of conflicting testimony will require the skills of an attorney to properly present and cross-exam the evidence and witness. Id. at 213; Salmon v. Corpus Christi Indep. Sch. Dist., 911 F.2d 1165, 1166 (5th Cir. 1990) (reiterating and applying the factors enumerated in Ulmer). The factors identified in Ulmer are not exhaustive of what demonstrates exceptional circumstances. Ulmer, 691 F.2d at 213. The Court may also consider whether the litigant has attempted to secure counsel without the court's assistance, especially since there is an opportunity to recover attorney's fees if successful on his § 1983 claim. Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989). The ultimate decision, however, whether or not to request that an attorney represent an indigent litigant is within the discretion of the Court. Ulmer, 691 F.2d at 213.
After careful review, the Court finds that Plaintiff's case does not present any exceptional circumstance that would justify the appointment of counsel. Plaintiff asserts that appointment of counsel is warranted for the following reasons (1) Plaintiff's case is a fee generating case; (2) the issues involved are complex, especially the medical issues, which may require expert testimony; (3) he is unable to effectively present his case because he has only limited access to legal material; and (4) he has a limited knowledge of the law. Though the Court is not unsympathetic to these circumstances, they do not present exceptional circumstances warranting the appointment of counsel. Plaintiff's § 1983 claim involves neither complex nor novel issues of law or fact. As the Fifth Circuit has noted, "While section 1983 cases are by their nature more complex than many other cases, . . . counsel must be appointed only in exceptional civil rights cases." Jackson v. Dallas Police Dep't, 811 F.2d 260, 262 (5th Cir. 1986) (emphasis added). This is not such a case. Rather, Plaintiff's complaint is a relatively straightforward and simple claim that the actions and inactions of the Defendants have caused a degree of personal injuries rising to the level a violation of Plaintiff's constitutional rights. In addition, as Plaintiff notes, if he prevails on his claim, then he would be entitled to reasonable attorney's fees. This fact, however, weighs against the Court appointing counsel since a private or public sector may be willing to take on the case without nudging from the Court. Jackson, 864 F.2d at 1242. The Court recognizes that every litigant benefits by having an attorney. Plaintiff, however, has failed to demonstrate that, unique from other lay-person litigants, he will have any particular difficulty in either investigating or presenting his case that justifies the special benefit of having the Court appoint counsel.
For the above stated reasons, the Court finds that there are not "exceptional circumstances" present in this case that would justify the appointment of counsel. Nothing in this Order shall be construed as precluding Plaintiff from re-urging this Motion at a later date if Plaintiff can demonstrate, in accordance with the law detailed above, the existence of "exceptional circumstances."