United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B Russell, United States District Court Senior Judge
matter is before the Court on Plaintiff Carl Lee Adkins,
Jr.'s Motion to Appoint Counsel. [R. 38.] For the reasons
discussed below, Plaintiff's Motion to Appoint Counsel,
[R. 38], is DENIED.
does not require the appointment of counsel for indigent
plaintiffs in civil cases. See Lavado v. Keohane,
992 F.2d 601, 604-05 (6th Cir. 1993). The appointment of
counsel in a civil proceeding is not a constitutional right
and is justified only by exceptional circumstances.
Id. at 605-06; 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.'” Id. (citations omitted).
before the Court is Adkins's second Motion to Appoint
Counsel. [R. 38.] Generally, his arguments remain the same as
in the first motion. Once again, he asserts the complexity of
the case, his inability to investigate, and conflicting
testimony as circumstances requiring the appointment of
counsel. [R. 6 at 1; R. 38-2 at 2-4.] The Court stands by its
previous ruling in which it denied these assertions as
“exceptional circumstances” warranting
appointment of counsel. [See generally R. 10.]
However, in his second motion, Adkins raises some additional
arguments that must be addressed.
Adkins argues that “it will be necessary to present a
medical expert witness and/or to cross-examine medical
witnesses called by the defendants” and such
“issues requiring expert testimony support the
appointment of counsel.” [R. 38-2 at 1.] For support,
Adkins cites to three cases, all outside the Sixth Circuit,
that the Court finds to be distinguishable from the case at
hand. Two of the cases, Montgomery v. Pinchak and
Moore v. Mabus, involved medical issues much more
complex than the wrist injury Adkins allegedly endured due to
the use of chair restraints. In contrast to Adkins's
wrist injury, Montgomery involved a cardiac
catheterization for a patient with heart disease,
see 294 F.3d 492, 504 (3d Cir. 2002), and
Moore involved the “complex subject” of
HIV-AIDS management in a prison environment, see 976
F.2d 268, 272 (5th Cir. 1992). In the third case cited by
Adkins, Jackson v. County of McLean, the Seventh
Circuit found that the district court abused its discretion
in failing to grant the prisoner plaintiff's request for
counsel at trial because “[t]he district court should
have realized that it was highly probable that Jackson would
not have recognized the need to call expert witnesses to
present a prima facia case.” 953 F.2d 1070, 1073 (7th
Cir. 1992). Unlike the plaintiff in Jackson, Adkins
clearly recognizes the importance of expert witnesses. The
Court is sensitive to the fact that Adkins worries he will
not be able to effectively conduct examinations of witnesses,
but “such a commonplace occurrence in the life of every
trial cannot constitute exceptional circumstances.”
Cooper v. Bower, No. 5:15-CV-249-TBR, 2017 WL
6462288, at *2 (W.D. Ky. Dec. 18, 2017). Furthermore, in the
context of this motion, the Court only considers the
appointment of counsel, not the appointment of an expert.
Thus, the Court finds Adkins's first argument does not
set forth “exceptional circumstances.”
Adkins argues that his case presents a complex legal
situation due to the “large number of officials who
were involved in the use of excessive force” and the
fact that he has asked for a jury trial. [R. 38-2 at 4.] As
this Court has previously stated, “[t]he fact that
there are numerous Defendants is of no moment, as all of
Plaintiff's allegations relate to a single
incident.” Calloway v. Beasley, No.
3:13-CV-410-CRS-CHL, 2015 WL 2151952, at *3 (W.D. Ky. May 7,
2015). Regarding Adkins's concern about representing
himself at a jury trial, the Court finds that “[s]uch a
commonplace occurrence, standing alone, cannot be grounds for
the appointment of counsel in a civil action such as
this.” Cooper, No. 5:15-CV-249-TBR, 2017 WL
6462288, at *2 (holding, amongst many arguments from the
plaintiff, the argument that the plaintiff had “never
proceeded to trial in a civil action before” was not an
exceptional circumstance warranting the appointment of
counsel). Thus, the Court finds Adkins's second argument
does not set forth “exceptional circumstances.”
Adkins argues that he is an “indigent prisoner with no
legal training, a factor that supports the appointment of
counsel.” [R. 38-2 at 3.] In support, Adkins cites to
the Seventh Circuit's holding in Forbes v.
Edgar, 112 F.3d 262 (7th Cir. 1997). However, the court
in Forbes held that the lower court's denial of
request for appointment of counsel was not an abuse
of discretion. See 112 F.3d at 264-65. Thus,
Forbes actually discredits Adkins's argument.
Furthermore, Adkins has shown himself to have an impressive
“ability[y] to represent himself.”
Lavado, 992 F.2d at 606. Based on the progression of
this case to date, it appears that Adkins is articulate and
able to represent himself sufficiently at this time.
summary, the Court finds that Adkins has not set forth any
“exceptional circumstances” warranting
appointment of counsel at this stage.
reasons stated herein, IT IS HEREBY ORDERED:
Plaintiff Carl Lee Adkins, Jr.'s Motion to ...