Pettieway

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

MARLON JAMES PETTIEWAY DOCKET NO. 2:23-cv-0352

D.O.C. # 1308765 SECTION P

VERSUS JUDGE JAMES D. CAIN, JR.

SUPERVISOR KERRY, ET AL MAGISTRATE JUDGE LEBLANC

CORRECTIVE MEMORANDUM ORDER

This order corrects and replaces the Memorandum Order docketed in error at ECF No. 65,

which is hereby VACATED.

Marlon James Pettieway, proceeding in forma pauperis, filed a civil complaint in this Court

pursuant to 42 U.S.C. § 1983 alleging a violation of the Eighth Amendment of the U.S.

Constitution. Doc. 3. He has previously filed motions for the Court to appoint him counsel (docs.

23, 40, 45, 47) which the Court denied for failure to demonstrate exceptional circumstances

warranting appointment of counsel (docs. 30, 51). This Court later dismissed Pettieway’s claims

against the Calcasieu Correctional Facility with prejudice (doc. 27) and dismissed the remaining

claims without prejudice for failure to exhaust administrative remedies (doc. 54). Plaintiff filed a

Notice of Appeal. Presently pending before this Court are plaintiff’s Motions to Appoint Counsel

on Appeal. Docs. 58, 62.

“Generally, when an appeal is taken, the district court is divested of jurisdiction except to

take action in aid of the appeal until the case is remanded to it by the appellate court, or to correct

clerical errors under Rule 60(a).” Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1407

n.3 (5th Cir. 1994). Because the issue of whether the Court should appoint counsel to assist

Pettieway in prosecuting his appeal is an “action in aid of the appeal,” the Court retains jurisdiction

to consider his requests. See id.

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 of Iowa, 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 Appeals 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 290, 293 n.14 (5th Cir.

1992)); see also Ulmer, 691 F.2d. at 213, and Jackson, 864 F.2d. at 1242.

After reviewing his request, the Court once again finds that Pettieway’s claims are not

atypical of those often asserted in civil rights litigation and are not complex. Further, he has not

shown himself to be unable to represent his own legal interests. See Lozano v. Schubert, 41 F.4

485, 492-493 (5 Cir. 2022); Brown v. Tarrant County, Texas, 985 F.3d 489, 499 (5" Cir. 2021).

Accordingly,

IT IS ORDERED that Marlon James Pettieway’s requests for appointment of counsel on

appeal (docs. 58, 62) are DENIED, as the circumstances presented herein are not “exceptional” so

as to warrant the appointment of counsel.

SO ORDERED at Lake Charles, Louisiana, this 20th day of August, 2026.

UNITED ST*&TES MAGISTRATE JUDGE

-3-