United States District Court, W.D. Kentucky, Louisville
YALE LARRY BALCAR et al. PLAINTIFFS
AARON SMITH et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge
se Plaintiffs Yale Larry Balcar and Carl J. Perry, Jr.,
initiated this 42 U.S.C. § 1983 civil rights
action. In their complaint, Plaintiffs allege that
there is “friable asbestos” and black mold at
Kentucky State Reformatory (KSR), where they are
incarcerated. They further allege that Defendants Warden
Smith and Commissioner Ballard have knowledge of the
inmates' exposure to these substances at KSR. Plaintiffs
also allege that they suffer from “COPD” and
breathing problems and that “Doctor Frederick Kemen and
his staff refuse to treat for friable asbestos and black mold
to both Plaintiffs.”
the Court could conduct an initial review of the complaint
pursuant to 28 U.S.C. § 1915A, Plaintiffs filed a motion
for a preliminary injunction (DN 8). The Court denied this
motion on December 20, 2016 (DN 25). Plaintiffs then filed a
notice of appeal in the Sixth Circuit Court of Appeals (DN
27). As a result of this interlocutory appeal, on January 31,
2017, the Court entered an Order staying the action pending
the resolution of Plaintiffs' appeal in the Sixth Circuit
(DN 34). The Sixth Circuit dismissed Plaintiff's appeal
for want of prosecution on November 2, 2017 (DN 38), and this
Court then entered an Order lifting its stay on the action on
November 29, 2017 (DN 39). By separate Order entered this
date, the Court conducted its initial review of
Plaintiffs' complaint pursuant to § 1915A and
allowed the action to proceed.
Court will now address the motions that Plaintiffs filed both
before and during the pendency of the stay.
MOTION FOR PRELIMINARY REVIEW OF THE COMPLAINT (DN
filed this motion on October 24, 2016, ten days after they
filed their motion for a preliminary junction (DN 8). In this
motion, they make arguments similar to the arguments made in
their motion for a preliminary injunction, which this Court
denied on December 20, 2016 (DN 25). Moreover, because the
Court has now conducted its initial review of Plaintiffs'
complaint, this motion is moot. For all of these reasons,
IT IS HEREBY ORDERED that Plaintiffs'
motion for preliminary review of the complaint (DN 9) is
MOTION FOR TRANSPORTATION BY U.S. MARSHAL ONLY (DN
motion, Plaintiffs request that they be transported to the
preliminary injunction hearing by U.S. Marshals because they
fear for their safety if they are transported by KSR
officials. Because the Court has already ruled on
Plaintiffs' motion for a preliminary injunction, and no
hearing was necessary, IT IS HEREBY ORDERED
that this motion (DN 13) is DENIED as moot.
MOTION TO APPOINT COUNSEL (DN 14)
motion, Plaintiffs' request the appointment of counsel.
In their motion, they state that their imprisonment will
greatly limit their ability to litigate this action. They
further argue that the issues in this case are complex and
will require significant research and investigation, and that
they have only limited access to the law library and limited
knowledge of the law.
does not require the appointment of counsel for indigent
plaintiffs in civil cases. See Lavado v.
Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). Indeed,
the appointment of counsel in a civil proceeding is not a
constitutional right but a privilege that is justified only
by exceptional circumstances. Id. See also
Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.
2003); Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th
Cir. 1987) (“‘[T]he appointment of counsel in a
civil case is, as is the privilege of proceeding in forma
pauperis, a matter within the discretion of the court.
It is a privilege and not a right.'”) (quoting
United States v. Madden, 352 F.2d 792, 793 (9th Cir.
1965)). “In determining whether ‘exceptional
circumstances' exist, courts have examined ‘the
type of case and the abilities of the plaintiff to represent
himself.' This generally involves a determination of the
‘complexity of the factual and legal issues
involved.'” Lavado v. Keohane, 992 F.2d at
606. (citations omitted).
Court finds that the complexity of the issues in this case
does not necessitate the appointment of counsel at this time.
See Knowles-Browder v. Ca. Forensic Med. Group
Staff, No. CIV S-05-1260, 2006 U.S. Dist. LEXIS 20973,
at *1 (E.D. Cal. Apr. 10, 2006) (“Most pro se litigants
believe that their cases are complex, and all prisoners find
that their access to law libraries is limited.”).
Furthermore, based on a review of the documents filed by
Plaintiffs thus far, the Court finds their filings relatively
clear and straight-forward, which indicates that, at this
point, Plaintiffs are capable of representing themselves.
Consequently, the Court finds that Plaintiffs have not set
forth any “exceptional circumstances” warranting
appointment of counsel at this stage. However, nothing in
this Order shall preclude Plaintiffs from requesting
appointment of counsel at a future point in this action
should exceptional circumstances arise to justify such an
foregoing reasons, IT IS HEREBY ORDERED that
Plaintiff's motion for the appointment of counsel (DN 14)
MOTION FOR ENTRY ...