Opinion
CIVIL ACTION NO. 04-583, SECTION "K" (3)
March 19, 2004
ORDER AND REASONS
Pro se plaintiff, Katie H. Robertson ("Robertson"), filed the captioned matter in this district court appealing a decision of the Louisiana Supreme Court, denying her request for pauper status, Plaintiff complains that the Louisiana Supreme Court erroneously denied her application for pauper status and/or to appoint specialized indigent counsel and seeks an order this district court directing the Louisiana Supreme Court to modify its ruling or to issue "reasons for the denials."
See Plaintiffs Complaint tendered for filing on March 1, 2004
Robertson was ordered to show cause in writing on or before Friday, March 19, 2004, as to why this case should not be summarily dismissed as "frivolous" pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-iii). [Rec. Doc. No. 3]. More particularly, the Court explained that the plaintiff has failed to make any allegation whatsoever regarding the statutory basis for this Court's exercise of "appellate jurisdiction" in her case. The Court has withheld the issuance of service of summons and complaint because it is apparent on the face of the complaint that the plaintiff fails to meet the requirements of the federal in forma pauperis statute.
28 U.S.C. § 1915(e)(2)(B) provides for summary dismissal sua sponte, should the Court determine that the case is frivolous, inter alia. Section 1915(e)(2)(B) provides in pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
* * *
(B) the action or appeal —
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2) (emphasis added). In plain language, Section 1915 requires dismissal if the Court is satisfied that the case is frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (noting that a claim is "frivolous" where it lacks an arguable basis either in law or in fact).
The Court further explained in detail the basis of its rule to show cause order, to wit:
In Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), the United States Supreme Court coined the doctrine which recognizes that federal district courts, as courts of original jurisdiction Jack appellate jurisdiction to review, modify, or nullify final orders of state courts. The Fifth Circuit has applied the Rooker-Feldman doctrine in various contexts, giving it lull effect even in cases involving allegations that the state court decision itself is a violation of the United States Constitution. "Casting of a complaint in the form of a civil rights action cannot circumvent this rule."
Most notably, even in civil rights and Section 1983 actions, an indigent federal plaintiff does not have an absolute right to appointed counsel; rather, the plaintiff must demonstrate "exceptional circumstances." Similarly, there exists no absolute right to be allowed to proceed in forma pauperis in federal civil matters: instead, it is privilege extended to those unable to pay filing fees where it is not apparent that the claims do not lack merit on their face.
Absent express statutory grants of appellate jurisdiction, federal district courts are courts of original jurisdiction and thus cannot sit as appellate courts in review of state court judgments. "[R]ecourse at the federal level is limited solely to an application for writ of certiorari to the United States Supreme Court."See Rule to Show Cause Order dated March 4, 2004 [Rec. Doc. No. 3].
See Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000); Musslewhite v. State Bar of Texas, 32 F.3d 942 (5th Cir. 1994), cert. denied, 115 S.Ct. 2248 (1995).
Guidry v. East Feliciana Parish Police Jury, 210 F. Supp.2d 802, 804 (M.D. La. 2002).
See Norton v. E.U. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Vitug v. Merit Systems Protection Board, 2002 WL 1216023 (E. D. La.) (Shushan, M. J.); Sly v. Stalder, 2002 WL 31371958 (E. D. La.) (Wilkinson, M. J.).
See Startii v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969); Adepegba v. Mammons, 103 F.3d 383, 387 (5th Cir. 1996) (noting that the revocation of the privilege of proceeding in forma pauperis is not new, either).
Liedtke v. State Bar of Texas, 18 F.3d 315, 317 (5th Cir. 1994) ( citing Rooker and Feldman, supra).
Plaintiff's response to this Court's Rule to Show Cause Order was a Motion to Appoint Counsel, to which she is clearly not entitled at this juncture. 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." As aforestated, plaintiff does not have either a constitutional right or an automatic right to appointed counsel in a civil case. Unlike a criminal defendant, an indigent civil rights litigant, even if currently incarcerated, does not have a right to appointed counsel absent "exceptional circumstances." Indeed, the federal court has considerable discretion in determining whether to make such an appointment in a civil case. The Court has discretion to appoint counsel in such a case if doing so would advance the proper administration of justice. The plaintiff bears the burden of persuasion as to the necessity of such an appointment.
See Caston v. Sears, Roebuck and Co., 556 F.2d 1305, 1309 (5th Cir. 1977).
See Norton v. E.U. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Vitug v. Merit Systems Protection Board, 2002 WL 1216023 (E. D. La.) (Shushan, M. J.); Sly v. Stalder, 2002 WL 31371958 (E. D. La.) (Wilkinson, M. J.).
See Salmon v. Corpus Christi Independent School District, 911 F.2d 1165, 1166 (5th Cir. 1990).
See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982); Salmon v. Corpus Christi Independent School Dist., 911 F.2d 1165, 1166 (5th Cir. 1990).
See Caston, 556 F.2d at 1310.
The evidence submitted regarding the plaintiff's indigence and the efforts made to secure counsel thus far are bare minimum threshold considerations. Those are simply two of the factors which should guide the court in making the determination as to the necessity of appointing counsel. The term "exceptional circumstances" generally relates to the type and complexity of the case and the ability of the plaintiff to present her claim. More particularly, the following factors are considered when ruling on a request for appointment of counsel: (a) the type and complexity of the case; (b) whether the indigent is capable of presenting her case adequately; (c) whether she 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. The district court should also consider whether appointment of counsel would be of service to the court and the defendant by sharpening the issues in the case.
Robbins v. Maggio, 750 F.2d 405, 412 (5th Cir. 1985).
Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992); Ulmer, 691 F.2d at 213.
Id.
As to the probable success of the claims brought by the plaintiff, the Court notes that there is little, if any, reason to doubt that the Court does not have jurisdiction either to hear or decide the case, which is essentially an appeal of Louisiana Supreme Court order denying plaintiffs pauper application. The only issue presented at this stage is one of law, i.e., whether this Court has subject matter jurisdiction over the plaintiffs claim. The issue has now been explained in some detail twice, it is not complex and neither an investigation nor testimony is required for purposes of this determination. Suffice it to say, the appointment of counsel would be of no service to the Court at this stage and would not serve to further sharpen the sole issue.
Nevertheless, the Court shall grant the plaintiff an extension of time up to and including April 7, 2004, within which to file a written statement of her position as to why she believes this District Court has jurisdiction over her claim against the Louisiana Supreme Court. There is no need to travel to utilize a library or to cite any cases or statutory law. Plaintiff may simply state in her own words why she believes this federal District Court has authority to tell the Louisiana Supreme Court to modify its order issued in an ongoing state court proceeding. It is apparent to this Court that, notwithstanding the plaintiffs disabilities, her ability to draft and file pleadings and motions remains unimpaired. To date, the plaintiff has drafted and filed a complaint, motion to appoint counsel and motion for continuance without the assistance of counsel in this federal proceeding alone.
Accordingly and for all of the foregoing reasons, the Court issues the following orders, to wit:
IT IS ORDERED that the plaintiffs Motion for Appointment of Counsel is DENIED.
IT IS FURTHER ORDERED that the plaintiff is GRANTED AN EXTENSION OF TIME up to and including WEDNESDAY, APRIL 7, 2004 , within which to file a written statement as to why she believes that the District Court has jurisdiction over her claim against the Louisiana Supreme Court; in all other respects the plaintiff's for continuance is DENIED.
IT IS FURTHER ORDERED that the failure of the plaintiff to comply with the aforesaid order and to file a written response as explained above shall result in the immediate dismissal of the captioned complaint without further notice, for failure to prosecute and for lack of subject matter jurisdiction.