affirming denial of counsel in § 1983 action alleging excessive force
How later courts described this case
- affirming denial of counsel in § 1983 action alleging excessive force
- counsel is only appointed under exceptional circumstances in a civil rights 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.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN JOINER CIVIL ACTION
VERSUS NO. 23-7144
OFFICER TAYLOR LEWIS, ET AL. SECTION “R”(4)
ORDER AND REASONS
Plaintiff John Joiner filed a Motion for Appointment of Counsel (ECF No. 11) in which
he requests appointment of counsel to assist him in this in forma pauperis civil rights case brought
under 42 U.S.C. § 1983. In his pro se complaint, Joiner claims that his jaw was broken during a
traffic stop by defendants, Officers Taylor Lewis and Clarence Cloud, while he was restrained in
handcuffs. ECF No. 1, ¶IV, at 5. He claims that he was taken to the hospital and given a follow-
up appointment to see a surgeon. However, once in the St. Tammany Parish Jail, he was denied
the follow-up appointment and refused treatment to repair his jaw which has resulted in chronic
pain in his jaw, constant headaches, and difficulty eating and speaking.
The motion was scheduled for submission on February 14, 2024, and Joiner was ordered
to provide additional information related to his alleged need for counsel and efforts to obtain
counsel on his own. ECF No. 12. In his response, Joiner indicates that his state criminal defense
attorney agreed to assist him in his efforts to retain counsel to assist with this federal civil rights
case. He claims that, as his filing deadline approached, he was unable to contact his criminal
defense attorney or otherwise retain counsel. ECF No. 17.
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 Joiner’s case. Excessive force and medical
indifference 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.”). Joiner’s case likely will involve
mostly factual questions and possible conflicting testimony, as is the nature of litigation. However,
such conflicts are not indicative of unusual or exceptional circumstances 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.”). His claims, though serious as alleged, are not complex in
circumstance or presentation.
2
Furthermore, assuming this matter proceeds to trial, any litigant could potentially benefit
from assistance with “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). Joiner has adequately stated his claims and
demonstrates an ability to file 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 Joiner having counsel, the Court can
evaluate any change of circumstance at that time. Ulmer, 691 F.2d at 213. Accordingly,
IT IS ORDERED that Joiner’s Motion for Appointment of Counsel (ECF No. 11) is
DENIED.
New Orleans, Louisiana, this 16th day of February, 2024.
KAZE Sel
CTI OHS
KAREN WELLS RQBY/
UNITED STATES MAGISTRATE JUDGE