The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
JEFFREY A. NUNEZ DOCKET NO. 2:24-cv-157
D.O.C. # 252583 SECTION P
VERSUS JUDGE JAMES D. CAIN, JR.
CALCASIEU CORRECETIONAL MAGISTRATE JUDGE LEBLANC
CENTER, ET AL
Consolidated with
JEFFREY A. NUNEZ DOCKET NO. 2:24-cv-334
D.O.C. # 252583 SECTION P
VERSUS JUDGE JAMES D. CAIN, JR.
SHERIFFS OFFICE CALCASIEU MAGISTRATE JUDGE LEBLANC
PARISH, ET AL
MEMORANDUM ORDER
Before the court is a Motion to Certify Class filed in Civil Action No. 24-334 (doc. 10) and
in Civil Action No. 24-157 (doc. 9) and Motion to Appoint Counsel filed in Civil Action 24-334
(doc. 13), filed by plaintiff Jeffrey A. Nunez. For the reasons below, Plaintiff’s motions are
DENIED.
I.
BACKGROUND
Plaintiff has filed a pro se civil rights complaint alleging constitutional violations at
Riverbend Detention Center. Plaintiff seeks to bring this action on behalf of himself and other
inmates at Riverbend Detention Center.
II.
LAW AND ANALYSIS
A. Motion to Certify Class
“[T]he class action device exists primarily, if not solely, to achieve a measure of judicial
economy, which benefits the parties as well as the entire judicial system. It preserves the resources
of both the courts and the parties by permitting issues affecting all class members to be litigated in
an efficient, expedited, and manageable fashion.” Allison v. Citgo Petroleum Corp., 151 F.3d 402,
410 (5th Cir. 1998). To obtain class certification under Rule 23(a) of the Federal Rules of Civil
Procedure, Plaintiff must satisfy the following requirements: “(1) numerosity (a ‘class [so large]
that joinder of all members is impracticable’); (2) commonality (‘questions of law or fact common
to the class’); (3) typicality (named parties’ claims or defenses ‘are typical ... of the class’); and
(4) adequacy of representation (representatives ‘will fairly and adequately protect the interests of
the class’).” Amchem Prods., Inc. v. Windsor, 117 S. Ct. 2231, 2245 (1997) (quoting Fed. R. Civ.
P. 23(a)). Additionally, Plaintiff must show that the action is maintainable pursuant to Rule
23(b)(1), (2) or (3). Id.
Requests for class certification by a prisoner acting pro se are generally denied because the
prisoner cannot “fairly and adequately protect the interests of the class.” See Fed. R. Civ. P.
23(a)(4); Ali v. Immigration and Customs Enforcement, No. 1:16-CV-037, 2017 U.S. Dist. LEXIS
30604, 2017 WL 881102, at (N.D. Tex. Feb. 2, 2017) (denying motion to certify class filed by an
immigration detainee proceeding pro se because he failed to show “he could fairly and adequately
protect the interests of a purported class of other [immigration] detainees”). Because Plaintiff fails
to show that he can properly serve as a representative party in a class action, his motion to proceed
as a class action is denied.
B. Motion to Appoint Counsel
Congress has not specifically authorized courts to appoint counsel for plaintiffs proceeding
under 42 U.S.C. §1983. “Generally, no right to counsel exists in §1983 actions [but] appointment
of counsel should be made as authorized by 28 U.S.C. §1915 where ‘exceptional circumstances’
are present.” Robbins v. Maggio, 750 F.2d 405 (5th Cir. 1985). Pursuant to 28 U.S.C. §1915(e)(1),
federal courts are given the power to request that an attorney represent an indigent plaintiff. In the
case of Mallard v. United States District Court for the Southern District, 109 S. Ct. 1814, 1818
(1989), the United States Supreme Court held that federal courts can only request that an attorney
represent a person unable to employ counsel because federal courts are not empowered under 28
U.S.C. §1915(e)(1) to make compulsory appointments.
Although courts can request that an attorney represent an indigent plaintiff, the court is
not required to make this request in the absence of “exceptional circumstances.” See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir.
1989). No precise definition of “exceptional circumstances” is available, but the United States
Fifth Circuit Court of Appeal has provided a litany of factors for lower courts to consider in
determining whether the plaintiff is entitled to have the court request that counsel assist him in his
suit. It is proper for the court to consider the following factors: the type and complexity of the
case; the plaintiff’s ability to adequately present and investigate his case; the presence of evidence
which largely consists of conflicting testimony so as to require skill in presentation of evidence
and cross-examination; and the likelihood that appointment will benefit the petitioner, the court,
and the defendants by “shortening the trial and assisting in just determination.” See Parker v.
Carpenter, 978 F.2d 190 (5th Cir. 1992), citing Murphy v. Kellar, 950 F.2d at 293, n.14; see also
Ulmer, 691 F.2d. at 213, and Jackson, 864 F.2d. at 1242.
Plaintiff's claims are not atypical of those often asserted in civil rights litigation and are
not complex. Further, plaintiff has not shown himself to be unable to represent his own legal
interests. See Lozano v. Schubert, 41 F.4th 485, 492-493 (Sth Cir. 2022); Brown v. Tarrant County,
Texas, 985 F.3d 489, 499 (Sth Cir. 2021). Accordingly, plaintiffs request for appointment of
counsel is DENIED, as the circumstances presented herein are not “exceptional” so as to warrant
the appointment of counsel.
Til.
CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Certify Class filed in Civil Action No. 24-334 (doc.
10) and in Civil Action No. 24-157 (doc. 9) and Motion to Appoint Counsel filed in Civil Action
24-334 (doc. 13) are DENIED.
THUS DONE AND SIGNED in chambers this 23rd day of January, 2025.
UNITED SPATES MAGISTRATE JUDGE
4.