Joiner v. Lewis

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 second ex parte Motion for Appointment of Counsel (ECF

No. 33) requesting that counsel be appointed to assist him in this in forma pauperis civil rights

case brought under 42 U.S.C. § 1983. Joiner sued defendants Officers Taylor Lewis and Clarence

Cloud, alleging the use of excessive force during his arrest which resulted in a broken jaw, and

Drs. Ham and Gore, alleging the denial of adequate follow-up medical care for his jaw. ECF No.

1, ¶IV, at 5. In his motion, Joiner claims that he needs counsel to assist in timely filing pleadings

and because the inmate helping him was released from jail. ECF No. 33, at 1.

The Court scheduled the motion for submission for May 22, 2024, and ordered Joiner to

provide additional information as to his need for counsel and his efforts to obtain counsel. ECF

No. 39. In his response, Joiner states that he wrote to at least three attorneys and received one

refusal letter and no other responses. ECF No. 44; ECF No. 44-1, at 1-2. In an opposition,

defendants Lewis and Cloud argue that appointment of counsel is unnecessary because the case

should be stayed pending the outcome of Joiner’s underlying state criminal charges. ECF No. 43.

As the Court has already advised Joiner, a plaintiff in a civil rights case has no right to

automatic appointment of counsel. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

Appointment of counsel in a § 1983 case is at the discretion of the court when doing so “would

advance the proper administration of justice.” Id. at 213. Appointment of counsel is only

considered when exceptional circumstances exist that 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 looks to several factors when considering

a request for counsel in a § 1983 case: (a) the type and complexity of the case; (b) whether the

indigent is able to present 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).

Joiner’s case presents no exceptional circumstances that would warrant appointment of

counsel at this time. As the Court resolved in the Order denying Joiner’s first motion for

appointment of counsel, the excessive force and medical indifference claims in this case are not

complex and do not involve exceptional circumstances that would require assistance of counsel.

Although for reasons distinct from those urged in defendants’ motion to stay, the Court has

issued a Report and Recommendation recommending that (only) Joiner’s excessive force claims

against Lewis and Cloud be stayed until such time as the Court can determine the temporal

connexity between Joiner’s claims and the relevant pending state criminal charges. If adopted,

this ruling reduces the claims at issue before the Court, at least for the time being. Either way, the

claims do not involve extensive investigation or complex legal questions to warrant appointment

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.”).

2

As for the medical indifference claims against Drs. Gore and Ham, Joiner’s case involves

mostly factual questions involving medical records and likely some conflicting testimony, as is the

nature of any litigation. The claims and evidentiary conflicts, however, are not unusual or

exceptional circumstances requiring assistance of counsel. See James v. Gonzalez, 348 F. App’x

957, 958 (Sth Cir. 2009) (“conflicting testimony” are among the “common elements in civil rights

cases” and does not necessarily “rise to the level of exceptional circumstances.”). Joiner’s medical

indifference claims may be serious as alleged, but the claims are not complex in circumstance or

presentation to warrant appointment of counsel at this time.

Although any litigant could benefit from assistance of counsel, the circumstance of this

case do not involve an exceptional circumstances for purposes of appointing that counsel. Carter

v. Allen, 762 F. App’x 827, 836 (11th Cir. 2019). Joiner has adequately stated his claims and

demonstrated an ability to file intelligible motions and pleadings on his own behalf. It is not

uncommon for an inmate like Joiner to have input from other inmates when preparing pleadings,

but the unavailability of inmate assistance does not require appointment of counsel in a civil rights

case. Should it become apparent that the judicial process would benefit from appointment of

counsel, the circumstances can be evaluated at that time. U/mer, 691 F.2d at 213. Accordingly,

IT IS ORDERED that Joiner’s Motion for Appointment of Counsel (ECF No. 33) is

DENIED.

New Orleans, Louisiana, this 22nd_ day of May, 2024.

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