in assessing whether exceptional circumstances exist to warrant appointment, courts consider “merits of the case, the litigant's capability of conducting a factual inquiry, the complexity of the legal and factual issues, and the ability of the litigant to represent [him]self”
How later courts described this case
- in assessing whether exceptional circumstances exist to warrant appointment, courts consider “merits of the case, the litigant's capability of conducting a factual inquiry, the complexity of the legal and factual issues, and the ability of the litigant to represent [him]self”
- recognizing that 28 U.S.C. § 1915(e)(1) gives the court statutory authority to request appointed counsel
- “[t]here is no absolute constitutional right to a free lawyer in a civil case”
- “an indigent litigant must demonstrate exceptional circumstances in his or her case to justify the appointment of counsel”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-11606-RGS
COREY HENRY
Plaintiff
v.
THOMAS HODGSON, et al.
Defendants.
ORDER RE: PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
(DOCKET ENTRY # 66) AND MOTION FOR FUNDS FOR
A PRIVATE INVESTIGATOR (DOCKET ENTRY # 67)
May 16, 2018
Corey Henry (“plaintiff” or “Henry”), an inmate at the Souza
Baranowski Correctional Center, initiated this civil rights action seeking
damages for violations of his constitutional rights under 42 U.S.C. § 1983
arising from injuries he sustained after his 2014 arrest in Bristol County. In
August 2016, plaintiff's motion to proceed in forma pauperis under 28
U.S.C. § 1915 was granted. See Docket Entry # 9. Earlier this year, the claims
against the sheriff and two prison administrators were dismissed. See Docket
Entry #60. On March 2, 2018, an answer was filed by the remaining
administrator and seven correctional officers. See Docket Entry #63.
Discovery has commenced and is proceeding. See Docket Entry #60. On
April 20, 2018, plaintiff filed motions for appointment of counsel (Docket
Entry # 66) and for funds to hire an investigator (Docket Entry #67).
Turning to the request to appoint counsel, “indigent civil litigants,”
such as plaintiff “possess neither a constitutional nor a statutory right to
appointed counsel.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3rd Cir.
2002) (recognizing that 28 U.S.C. § 1915(e)(1) gives the court statutory
authority to request appointed counsel); accord DesRosiers v. Moran, 949
F.2d 15, 23 (1st Cir. 1991) (“[t]here is no absolute constitutional right to a free
lawyer in a civil case”). That said, 28 U.S.C. § 1915(e)(1) gives a court the
discretion to request appointed counsel for “any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1); see Weir v. Potter, 214 F.Supp.2d 53, 54 (D.
Mass. 2002) (citing 28 U.S.C. § 1915(e)(1) and noting that appointment is
discretionary).
In order to obtain appointed counsel, there must be a showing of both
indigency and exceptional circumstances. DesRosiers v. Moran, 949 F.2d at
23; accord Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (“an
indigent litigant must demonstrate exceptional circumstances in his or her
case to justify the appointment of counsel”); Weir v. Potter, 214 F.Supp.2d
at 54. To determine whether exceptional circumstances exist, a court
“examine[s] the total situation, focusing, inter alia, on the merits of the case,
the complexity of the legal issues, and the litigant's ability to represent
himself.” DesRosiers v. Moran, 949 F.2d at 24; see Weir v. Potter, 214
F.Supp.2d at 54 (in assessing whether exceptional circumstances exist to
warrant appointment, courts consider “merits of the case, the litigant's
capability of conducting a factual inquiry, the complexity of the legal and
factual issues, and the ability of the litigant to represent [him]self”).
In the instant action, the factual issues are not complex. Henry alleges
that he was assaulted by officers shortly after his arrival at a New Bedford
lock-up facility. After receiving medical treatment and prescriptions for a
cane, bottom bunk pass and handicapped shower, Henry alleges that he was
denied access to a handicapped shower causing him to suffer additional
injuries. Since the filing of his pro se complaint, Henry has filed an amended
complaint and has had success in opposing certain dispositive motions. It
seems to this court that plaintiff is capable of representing himself. In light
of the absence of exceptional circumstances, appointment of counsel is not
warranted at this time.
In addition to appointment of counsel, plaintiff seeks funds to hire a
private investigator. Although plaintiff is proceeding in forma pauperis
under 28 U.S.C. § 1915, this statute “authorizes the court to direct payment
only for the expenses of preparing a transcript, printing a record on appeal,
or serving process.” Id. (omitting citations). The court is without legal
authority to appoint a private investigator to assist Henry in this matter at
no cost to the plaintiff. See, e.g., Wallace v. Bledsoe, No. 10–225, 2010 WL
1565571 (M.D. Pa. Mar. 16, 2010); see also Georgacarakos v. Wiley, No. 07-
01712, 2009 WL 440934, at *7 (D. Colo. Feb.23, 2009) (stating § 1915 does
not authorize the court to appoint a private investigator). “There is no
constitutional or statutory requirement that the government or Defendant
pay for an indigent prisoner's discovery efforts.” Brown v. Ross County, No.
14-333, 2014 WL 4284874, at *2 (S.D. Ohio Aug. 28, 2014).
Accordingly, it is hereby ORDERED that:
1. Plaintiff’s motion to appoint counsel is DENIED without prejudice;
and
2. Plaintiff’s motion for funds for a private investigator is DENIED.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE