Evans v. Kuplinski

• Decision Date: 17 November 2017
• Docket Number: No. 16-6136,16-6136
• Parties: JUSTIN MARSHALL EVANS, Plaintiff - Appellant, v. JOHN KUPLINSKI, Superintendent; MICHAEL EAVES, Major Director of Security; MAJOR FRANK HOUTTE, Major Director of Medical; LT. CHARLES CAIN, Shift Supervisor; LT. KENNETH L. CLEVENGER, Shift Supervisor; CPL. CLYDE A. THOMAS, Officer; LT. LOUIS E. RICHARDSON, Shift Supervisor, Defendants - Appellees, and SGT. MELVIN D. CARTER, Assistant Shift Supervisor, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

JUSTIN MARSHALL EVANS, Plaintiff - Appellant, v. JOHN KUPLINSKI, Superintendent; MICHAEL EAVES,Major Director of Security; MAJOR FRANK HOUTTE,Major Director of Medical; LT. CHARLES CAIN, Shift Supervisor;LT. KENNETH L. CLEVENGER, Shift Supervisor;CPL. CLYDE A. THOMAS, Officer; LT. LOUIS E. RICHARDSON,Shift Supervisor, Defendants - Appellees,andSGT. MELVIN D. CARTER, Assistant Shift Supervisor, Defendant.

No. 16-6136

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: October 26, 2017

November 17, 2017

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:15-cv-00179-MSD-LRL)

Before DUNCAN, THACKER, Circuit Judges, and Max O. COGBURN, Jr., District Judge for the United States District Court for the Western District of North Carolina, sitting by designation.

Vacated and remanded by unpublished opinion. Judge Duncan wrote the opinion, in which Judge Thacker and Judge Cogburn joined.

ARGUED: Toby Jay Heytens, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Jeff W. Rosen, PENDER & COWARD, P.C., Virginia Beach, Virginia, for Appellees. ON BRIEF: Lisa Ehrich, PENDER & COWARD, P.C., Virginia Beach, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

DUNCAN, Circuit Judge:

Plaintiff-Appellant Justin Evans argues that the district court abused its discretion in denying his multiple requests for counsel before dismissing his pro se civil rights complaint against seven officials of the Virginia Peninsula Regional Jail ("VPRJ") for violations of his First and Eighth Amendment rights. For the reasons that follow, we find that the record presents the rare exceptional circumstances that render the district court's denial of Evans's requests for counsel an abuse of discretion. Accordingly, we vacate the district court's dismissal of Evans's complaint and remand for proceedings not inconsistent with this opinion.

I.

Evans has a long history of mental illness.¹ He has been prescribed medication and has been under the treatment of psychiatrists and psychologists since age seven. He was diagnosed with bipolar disorder at age twelve. He has a history of drug addiction and was hospitalized and committed for mental health treatment before his October 2009 incarceration.

Evans was arrested on October 13, 2009, and spent most of the time between that date and fall 2014 incarcerated at VPRJ, except for multiple commitments to Central State Hospital, a psychiatric facility. During this period, Evans's commitments to CentralState Hospital ranged in length from approximately one week to approximately two months. In fall 2014, he was committed to Central State Hospital and remained there through at least January 19, 2016.² At all relevant times, Evans was a pretrial detainee.

Evans's commitments to Central State Hospital prior to fall 2014 followed his frequent disruptive behaviors and acts of self-harm at VPRJ. Between October 2009 and December 2013, Evans required forty-one outpatient trips to the emergency room, seven hospital admissions, and seven commitments to Central State Hospital. During that time, VPRJ recorded forty-two instances of self-mutilation and at least thirty incidents of swallowing foreign objects including batteries, pens, pencils, and various plastic and paper items. The record does not clearly establish the basis for Evans's fall 2014 commitment to Central State Hospital, but it "was not due to an incident at [VPRJ]." J.A. 74. Evans was committed for treatment pursuant to a court order "based upon Virginia Code Section 19.2-169.2, Treatment of an Incompetent Defendant." J.A. 161.

Evans filed a pro se complaint under 42 U.S.C. § 1983 against seven VPRJ officials on March 23, 2015, while he was committed to Central State Hospital. His complaint alleges that he suffered various forms of abuse while at VPRJ. First, he alleges that he was violently assaulted by VPRJ officials on at least four occasions. He complains of incidents in March 2010, June 2010, December 2010, and on an unspecified date. Second, he complains about the conditions of his confinement, and describesspecific events that occurred in September 2010, between December 2010 and November 2011, in November 2012, and on multiple other dates. Third, he alleges that various defendants restricted his access to the courts while he was confined at VPRJ because he was prevented from filing a complaint for eight to ten months in 2011, that when he eventually prepared and signed a complaint it was never filed, that he was repeatedly told VPRJ had run out of the forms used to file a § 1983 action, and that he was denied the ability to conduct legal research and review legal documents.

Evans remained committed to Central State Hospital for the entirety of the litigation below. Because Central State Hospital is a psychiatric facility, it is not well-equipped to support a patient's legal research. At Central State Hospital, Evans has limited access to writing instruments, a typewriter, and a computer. Central State Hospital does not have a law library and has informed Evans that it cannot provide access to one.

Five defendants moved for summary judgment and the remaining two defendants moved to dismiss the complaint prior to discovery. Evans responded with a motion asking for appointed counsel, which the district court denied because Evans failed to set forth any exceptional circumstances demonstrating the need for an attorney. Evans then drafted a "Motion for Subpoena(s) Duces Tecum," seeking his inmate file from VPRJ. J.A. 130. The district court did not initially receive a copy of the motion, subsequently dismissed it as moot, and later denied Evans's two additional motions for subpoenas.

Evans filed a second motion for counsel, explaining that he had no access to a law library at Central State Hospital but that he needed to conduct legal research to respond tothe defendants' motions. Evans later filed a third motion for counsel. The district court denied Evans's second and third motions for counsel in a single order.

Evans then responded to the motions for summary judgment and to dismiss, and explained that the superintendent of VPRJ had admitted in a state court proceeding that he had denied Evans access to the law library in order to prevent Evans from suing VPRJ. Evans also wrote that he was "informed" of "legal precedents" stating "that if the Defendants prevented plaintiff from filing a lawsuit, or if plaintiff's access to courts and the Law was denied by or interrfered [sic] with by Defendants, . . . the time bar Statute of limitations referred to by Defendants['] Attorney is null and void," but explained that he could not research the issue at Central State Hospital. J.A. 199.

The district court granted the defendants' motions and dismissed the complaint in a Dismissal Order dated January 19, 2016. The Dismissal Order did not address the tolling issue that Evans identified, but concluded that Evans's claims were generally barred by the statute of limitations and that the defendants were entitled to summary judgment on all non-time barred claims. This appeal followed.

II.

We review the district court's denial of Evans's requests for counsel for abuse of discretion. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989).

A pro se prisoner does not have a general right to counsel in a § 1983 action. Id. However, "[t]he court may request an attorney to represent any person unable to affordcounsel." 28 U.S.C. § 1915(e). The decision to appoint counsel is committed to the district court's discretion, "but it is an abuse of discretion to decline to appoint counsel where the case of an indigent plaintiff presents exceptional circumstances." Whisenant, 739 F.2d at 163. In particular, the existence of exceptional circumstances turns on (1) the type and complexity of the case and (2) the capabilities of the individual bringing it. Id. Counsel should be requested "[i]f it is apparent . . . that a pro se litigant has a colorable claim but lacks the capacity to present it." Id.

For the reasons that follow, we find that exceptional circumstances exist here because (1) Evans's claims implicate a complex but colorable tolling issue and (2) Evans suffers from severe mental illness and was committed to a psychiatric facility without access to research materials for the entirety of the litigation below. Accordingly, we find that the district court abused its discretion by denying Evans's requests for counsel.

A.

We first examine the characteristics of Evans's claims, which suggest that this case presents exceptional circumstances because (1) Evans's § 1983 action implicates two legally complex tolling arguments and (2) Appellees conceded at oral argument that presentation of the tolling arguments below could have helped Evans. Taken together, these characteristics suggest that the "type and complexity of the case" present exceptional circumstances. See id. (quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982)).

First, Evans's claims implicate two complex tolling arguments. The district court ruled that most of Evans's claims under § 1983 were time-barred. Because there is no explicit statute of limitations for claims brought under § 1983, courts borrow the state law personal injury statute of limitations, ...