holding that counsel should have been appointed to pro se civil litigant where “claims implicate[d] a complex but colorable tolling issue and (2
How later courts described this case
- holding that counsel should have been appointed to pro se civil litigant where “claims implicate[d] a complex but colorable tolling issue and (2
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:20-CV-595-FL
ANGELA NEIL, )
)
Plaintiff, )
)
v. )
)
WARREN COUNTY SCHOOLS; )
KATRINKA R. BREWER, Principal of )
Mariam Boyd Elementary School; RAY )
SPAIN, Superintendent at Warren County )
Schools; KEEDRA WHITAKER, Chief )
Human Resources Officer at Warren County )
Schools; CHELSEA JENNINGS, Chief )
Academic Officer at Warren County )
Schools; DONNA ROBERTSON, Payroll )
and Benefits Specialist at Warren County )
Schools; SHEKENA SMITH, )
ORDER
Administrative Assistant at Mariam Boyd )
Elementary School; KENDRA DAVIS, )
Assistant Principal at Mariam Boyd )
Elementary School; ADRIENE STEWART, )
School Counselor at Mariam Boyd )
Elementary School; MYLICY POWELL, )
Head Custodian at Mariam Boyd Elementary )
School; BLAIR BRANTLEY, Kindergarten )
Teacher at Mariam Boyd Elementary )
School; ANNETTE CATES, Teacher )
Assistant at Mariam Boyd Elementary )
School; MIA TAYLOR-TERRY, School )
Nurse at Mariam Boyd Elementary School; )
MARTIAN TAYLOR; and STEPHANIE )
SEWARD, )
)
Defendants. )
This matter is before the court upon pro se plaintiff’s motion to appoint counsel (DE 68,
69,) and her request to schedule a conference with opposing counsel (DE 68).
A. Motion to Appoint Counsel
Section 1915(e) of Title 28 allows “the court . . . [to] request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). “The power to appoint is a discretionary
one.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by
Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989). However, there is no
constitutional right to counsel in civil cases, and courts should exercise their discretion to appoint
counsel for pro se civil litigants “only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780
(4th Cir. 1975). The existence of exceptional circumstances justifying appointment of counsel
depends upon “the type and complexity of the case, and the abilities of the individuals bringing
it.” Whisenant, 739 F.2d at 163 (quoting Branch v. Cole, 686 F.2d 264, 265 (5th Cir. 1982)).
While acknowledging the good faith efforts plaintiff has put forth to retain counsel, the
court must conclude that plaintiff has not demonstrated that exceptional circumstances justify
appointment of counsel by the court at this time. Compare Evans v. Kuplinski, 713 F. App’x 167,
170 (4th Cir. 2017) (holding that counsel should have been appointed to pro se civil litigant where
“claims implicate[d] a complex but colorable tolling issue and (2) [defendant] suffer[ed] from
severe mental illness and was committed to a psychiatric facility without access to research
materials for the entirety of the litigation below”). Accordingly, the motion to appoint counsel is
denied.
B. Scheduling Conference Request
Plaintiff requests “the Court to schedule a conference with the Defendant, in selecting a
deadline for provision of their joint report and plan through issuance of initial order regarding
planning and scheduling.” (DE 68). However, per the court’s March 8, 2021, order, as of March
22, 2021, the court, having heard no objection, stayed the parties’ scheduling conference pending
decision on defendants’ motion to dismiss (DE 62).! Plaintiffs March 11, 2021, filing (DE 65)
made no mention of such an objection and, instead, addressed defendants’ motion on its merits.
Further, plaintiff's request for an extension of time to state a claim upon which relief may be
granted, in the same filing, does not constitute such an objection and will be addressed by the
court’s later order addressing issues raised in defendants’ motion to dismiss.
CONCLUSION
Based on the foregoing, plaintiffs motion to appoint counsel (DE 68, 69) and her request
to schedule a conference with opposing counsel (DE 68) are DENIED.
SO ORDERED, this the 16th day of August, 2021.
AS, Lresen
LOUISE W. FLANAGAN
United States District Judge
1 Presently pending before the court is defendants’ motion to dismiss, which will be addressed by separate
order.