“[T]he legal contours of excessive force claims are well- established and not particularly complex.”
How later courts described this case
- “[T]he legal contours of excessive force claims are well- established and not particularly complex.”
- “conflicting testimony” are among the “common elements in civil rights cases” and does not necessarily “rise to the level of exceptional circumstances.”
- affirming denial of counsel in § 1983 action alleging excessive force
- counsel is only appointed under exceptional circumstances in a civil rights case
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAYTREND DENONE MOSES CIVIL ACTION
VERSUS NO. 20-2361
MOHAMED MAHMOUD, ET AL. SECTION “H”(4)
ORDER AND REASONS
Plaintiff Daytrend Denone Moses filed a Motion for Appointment of Counsel (ECF No.
32) in which he requests appointment of counsel to assist him in pursuing his case. Among the
claims asserted in his pro se and in forma pauperis complaint under 42 U.S.C. § 1983, remaining
before the Court are Moses’s claims against defendant Deputy Mohamed Mahmoud for alleged
intentional indifference and excessive force causing a fall on stairs in his dormitory in the Nelson
Coleman Correctional Center and claims against Sgt. Darryl Richardson and Lt. Elizabeth Raiford
for their alleged intentional indifference and failure to intervene in the incident. See ECF No. 17,
at 18; ECF No. 24.
The motion was scheduled for hearing and Moses was ordered to provide additional
information related to his alleged need for counsel and efforts to obtain counsel on his own. ECF
No. 33. Moses filed a response indicating that he has twice attempted to contact one attorney and
has received no response. ECF No. 36, at 2. He also states that he planned to present his case
before a judge, but has concerns with presenting issues of law to a jury. Id. at 1-2. The defendants
have opposed the motion on the basis that although Moses may be indigent, his case is not of the
sort of complex proceeding that would warrant appointment of counsel. ECF No. 35.
A plaintiff in a civil rights case has no right to the automatic appointment of counsel. Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). A district court, in its discretion, may appoint
counsel to represent a plaintiff in a § 1983 proceeding “if doing so would advance the proper
administration of justice.” Id. at 213. Thus, the court is not required to appoint counsel for an
indigent plaintiff in a civil lawsuit unless exceptional circumstances warrant the appointment.
Pena v. Brown, 637 F. App’x 162 (5th Cir. 2016) (counsel is only appointed under exceptional
circumstances in a civil rights case); see also Wendell v. Asher, 162 F.3d 887 (5th Cir. 1998)
(same); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994). The Court considers the following
factors when ruling on a request for counsel in a § 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) (quoting Murphy v. Kellar,
950 F.2d 290, 293 n.14 (5th Cir. 1992)); Dung Ngoc Huynh v. Baze, 317 F. App’x 397, 399 (5th
Cir. 2009) (citing Parker, 978 F.2d at 193).
There are no exceptional circumstances in Moses’s case. Excessive force and failure to
protect claims, like those in this case, are not considered complex or exceptional circumstances to
require assistance of counsel. See, e.g., Lewis v. Brengesty, 385 F. App’x 395, 397 (5th Cir. 2010)
(affirming denial of counsel in § 1983 action alleging excessive force); see also, Kiser v. Dearing,
442 F. App’x 132, 135 (5th Cir. 2011) (“[T]he legal contours of excessive force claims are well-
established and not particularly complex.”). Moses’s case likely will involve conflicting
testimony, as is the nature of litigation. However, this conflict is not indicative of an unusual or
exceptional circumstance requiring assistance of counsel. See James v. Gonzalez, 348 F. App’x
957, 958 (5th Cir. 2009) (“conflicting testimony” are among the “common elements in civil rights
cases” and does not necessarily “rise to the level of exceptional circumstances.”). The remaining
claims, though serious as alleged, are not complex in circumstance or presentation.
2
Furthermore, any litigant could potentially benefit from assistance with “shaping jury
instructions, participating in jury selection, conducting discovery, and engaging in cross-
examination,” but these incidents do not create exceptional circumstances for purposes of
appointing counsel. Carter v. Allen, 762 F. App’x 827, 836 (11th Cir. 2019). Moses has
adequately represented himself and has demonstrated the ability to file cogent motions, pleadings,
and responses on his own behalf. The record presents no circumstance that would warrant
appointment of counsel at this time. Should the case develop where the judicial process would
benefit from Moses having counsel, the Court can evaluate any change of circumstance at that
time. Ulmer, 691 F.2d at 213. Accordingly,
IT IS ORDERED that Moses’s Motion for Appointment of Counsel (ECF No. 32) is
DENIED.
New Orleans, Louisiana, this 17th day of February, 2022.
UNITED STATES MAGISTRA GE