Cookish v. Cunningham

• Decision Date: 20 March 1986
• Docket Number: No. 85-1666,85-1666
• Citation: 787 F.2d 1
• Parties: Dennis R. COOKISH, Plaintiff, Appellant, v. Michael CUNNINGHAM, Warden, New Hampshire State Prison, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

787 F.2d 1

Dennis R. COOKISH, Plaintiff, Appellant, v. Michael CUNNINGHAM, Warden, New Hampshire State Prison Defendant, Appellee.

No. 85-1666.

United States Court of Appeals First Circuit.

Submitted Dec. 5, 1985.

Decided March 20, 1986.

Dennis R. Cookish on brief, pro se.

Ronald F. Rodgers, Sr. Asst. Atty. Gen., Stephen E. Merrill, Atty. Gen., Concord, N.H., on brief for defendant, appellee.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

PER CURIAM.

Inmate Dennis Cookish filed this action in the district court of New Hampshire, charging that he had been denied proper medical care by state authorities, and had been denied access to a law library. Later, he amended his complaint, and alleged that the law library at the New Hampshire State Prison was constitutionally inadequate. The district court reviewed the complaint, and concluded that it could withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Cookish requested that counsel be appointed for him; that request was denied. The district court issued a pre-trial order, set a discovery schedule, and set the matter for trial. Cookish requested that the trial court subpoena close to two dozen witnesses; his request was granted in part and denied in part.

The matter was tried before a magistrate; both parties thereafter submitted post-trial briefs. In addition, Cookish, with the court's permission, submitted into evidence affidavits from fellow inmates. The court concluded that the evidence did not support Cookish' contention that his constitutional rights had been violated. On appeal Cookish challenged this conclusion; in addition, he argued that the district court abused its discretion by denying his request for appointed counsel, and by refusing to subpoena all of the witnesses he had requested. Cookish also argued that it was error for the court not to rule on issues raised in the pleadings but not argued at trial, and that the court erroneously admitted certain hearsay statements. We find none of appellant's arguments persuasive, and therefore affirm the judgment of the district court.

Denial of Request for Counsel.

The law is well established that there is no constitutional right to appointment of counsel in a civil case. Andrews v. Bechtel Power Corporation and Local 276, Plumbers and Pipefitters Union, 780 F.2d 124, 137 (1st Cir.1985). Section 1915(d) of Title 28, however, gives the district court the discretion to appoint counsel to an indigent litigant in appropriate circumstances. ¹ We review only to determine whether the district court abused its discretion. See, e.g., Childs v. Duckworth, 705 F.2d 915, 923 (7th Cir.1983). Cf. Andrews, supra, p. 137 (abuse of discretion standard applied in reviewing denial of counsel in Title VII case).

A number of courts have concluded, and we agree, that an indigent litigant must demonstrate exceptional circumstances in his or her case to justify the appointment of counsel. E.g., Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.1984); Slavin v. Curry, 690 F.2d 446, 448 (5th Cir.1982); United States ex rel. Gardner v. Madden, 352 F.2d 792, 794 (9th Cir.1965). See also Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir.1983) (no right to appointment of counsel unless the denial of proper representation would result in fundamental unfairness impinging on due process rights). Whether exceptional circumstances exist requires an evaluation of the type and complexity of each case, and the abilities of the individual bringing it. Branch v. Cole, 686 F.2d 264, 266 (5th Cir.1982). That the plaintiff has alleged sufficient facts to state a claim in the complaint does not in and of itself require the appointment of counsel. Childs v. Duckworth, supra; Maclin v. Freake, 650 F.2d 885, 887 (7th Cir.1981) ("Once the merits of the claim are considered and the district court determines the claim is colorable, appointment of counsel may or may not be called for, depending on a variety of other factors.") Nor would the fact that a complaint will likely result in a trial, without other significant factors, require the appointment of counsel. See, e.g., Slavin v. Curry, 690 F.2d at 448 (counsel not required even though case resulted in a six day jury trial); Cook v. Bounds, 518 F.2d 779, 780 (4th Cir.1975). Some factors which courts have found to bear on the question of exceptional circumstances in a particular case include the indigent's ability to conduct whatever factual investigation is necessary to support his or her claim, Peterson v. Nadler, 452 F.2d 754, 758 (8th Cir.1971); the complexity of the factual and legal issues involved, Childs v. Duckworth, supra, at 922; and the capability of the indigent litigant to present the case. Maclin v. Freake, supra, at 888.

Applying those factors to the case at bar, we find no abuse of discretion. The case involved three basic claims: (1) inadequate dental care; (2) denial of access to a law library; and (3) inadequacy of the law library.

The facts relating to each claim were relatively straight-forward and, to a great extent, undisputed. With respect to his claim of inadequate dental care, appellant testified, and the court found, that appellant first complained of a toothache on April 4 or 5, 1984. He was given Orajel for pain, and an appointment with the prison dentist was scheduled for April 10, 1984. At the appointment, a dental intern informed the appellant that he could treat the tooth only by pulling it. ² Appellant declined the treatment in the hopes that he would be released on bail and could seek private treatment. Within a few days, however, the pain became unbearable, and appellant requested that the tooth be pulled. An appointment was immediately scheduled, and the tooth extracted on April 13, 1984. The only dispute centered on the frequency of appellant's complaints of pain between April 5 and April 10: appellant testified that he complained frequently; prison records recorded only two complaints of pain. The prison nurse had no recollection of whether or not appellant had complained of a toothache.

Similarly, there was little dispute concerning the restrictions placed on appellant's access to the prison law library. When he arrived at the prison, appellant was confined at the Special Housing Unit (SHU) for approximately a two-week quarantine period. During the initial quarantine period, it was general practice to deny prisoners access to the law library except on an emergency basis. ³ Although appellant requested access to the library on numerous occasions, access was denied because prison authorities, after contacting the court in which appellant's case was pending, concluded that no emergency existed. When the quarantine period ended, appellant was permitted to use the prison library facilities; access was restricted once again, however, after appellant pled guilty to a charge of stealing law library books.

Finally, there was virtually no dispute as to the contents of the prison law library. In pleadings and in an affidavit appellant suggested that numerous books were missing; at trial, however, the state explained that those books were kept in a separate, locked closet because they presented a high risk of theft. Lists of the contents of the library and the satellite library were admitted as exhibits.

None of the claims involved presented difficult or complex factual issues, or investigative difficulties for the appellant. He was given access to his prison request slips, and was able to examine and catalog the contents of the law library. In addition, he introduced testimony from other inmates concerning their problems in conducting legal research and obtaining prompt medical care. To a great extent, he relied on his own testimony. As we noted earlier, there was little dispute about what the facts were; the dispute centered on whether, given those facts, appellant was entitled to relief.

The legal analysis required to answer this question was as straight-forward as the facts underlying the claim. Appellant needed to demonstrate "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs" to state a cognizable claim concerning his medical treatment. ⁴ Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). The only issue for resolution of appellant's other claims was whether the restrictions imposed on appellant's access to the prison law library, or the scope of the contents of the library, deprived him of his constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). Neither issue was novel or complex.

Lastly, nothing about the appellant himself militated in favor of appointing counsel. He neither alleged nor exhibited any functional difficulty which would prevent his adequately preparing and presenting his case. Cf. McCarthy v. Weinberg, 753 F.2d 836, 839 (10th Cir.1985) (petitioner suffered from multiple sclerosis, was confined to a wheelchair, and had trouble communicating, impaired eye sight and hearing); Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.1984) (petitioner was relatively uneducated generally and totally uneducated in legal matters); Maclin v. Freake, 650 F.2d 885, 889 (7th Cir.1981) (petitioner was confined to a wheelchair and in constant pain); Drone v. Hutto, 565 F.2d 543, 544 (8th Cir.1977) (petitioner suffered from mental illness). Instead, appellant exhibited relative familiarity with the legal process. His pleadings were well drafted, and frequently accompanied by carefully researched briefs. Appellant had already successfully moved to amend his initial complaint, and had moved for summary judgment, submitting affidavits and a brief in support of the motion.

In short, this case presented no exceptional circumstances which would support the appointment of counsel. The district court did not abuse its discretion by denying appellant's request.

The other issues raised by the appellant...