Poole v. Lambert

• Decision Date: 19 June 1987
• Docket Number: No. 86-8500,86-8500
• Citation: 819 F.2d 1025
• Parties: Reginald Lacroix POOLE, Plaintiff-Appellant, v. Larry LAMBERT, et al., Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1025

819 F.2d 1025

Reginald Lacroix POOLE, Plaintiff-Appellant, v. Larry LAMBERT, et al., Defendants-Appellees.

No. 86-8500

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

June 19, 1987.

Howe, Sutton, McCreary & Dettmering, W. O'Neal Dettmering, Jr., Douglasville, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, HILL and KRAVITCH, Circuit Judges.

PER CURIAM:

BACKGROUND

Appellant Poole is a federal inmate who since his conviction on federal criminal charges has been incarcerated in Leavenworth, Kansas. While awaiting trial in the Northern District of Georgia during 1984 and 1985, Poole, who is black, was housed at the Douglas County Jail in Douglasville, Georgia pursuant to a contractual agreement between Douglas County and the United States Marshall's office. Poole later filed this pro se complaint under 42 U.S.C. Sec. 1983 against defendants Lambert, McClure and Whitley, officers at the Douglas County Jail, alleging discrimination on the basis of race against himself and his fiance (now his wife), Patricia Poole, with respect to visitation privileges. More specifically, Poole alleged that on several occasions his fiance received different treatment than that accorded white visitors, that she was made to wait to begin her visit while white visitors were allowed to begin their visits immediately, and that he was allowed fewer contact visits with his fiance than white inmates were allowed with their visitors. Poole sought both compensatory and punitive damages.

The district court ordered Poole to provide a list of his prospective witnesses, along with a summary of the testimony which he and his witnesses would give. Poole complied by naming himself, Patricia Poole, two federal prisoners, Chambers and Roberts, who were in custody with him at the Douglas County Jail, their respective wives, and one additional white female. Poole also listed several doctors, friends, and relatives of Patricia who could testify as to the emotional and physical injuries she allegedly suffered as a result of the defendants' actions. Poole then moved for appointment of counsel. He also requested that the court order the government to assume the cost of transporting him from Leavenworth, Kansas to Atlanta, Georgia for trial, plus the cost of bringing his two federal inmate witnesses to Atlanta for the trial as well.

Although the district court found that Poole's claims were not facially meritless, it refused his request to be brought to Atlanta at government expense. This ruling was based solely upon the court's determination that there was no reasonable likelihood that a jury would award Poole sufficient damages to cover the cost of his transportation from Leavenworth to Atlanta. In addition, the court found that the presence of inmate witnesses Chambers and Roberts was not reasonably necessary to the presentation of Poole's case, and accordingly denied his request for their transportation. However, the district court never ruled on Poole's motion for appointment of counsel. The court ordered that the trial would be conducted in the plaintiff's absence, and instructed Poole to have his witnesses appear at the federal courthouse in Atlanta on May 19, 1986. The court admonished that if no witnesses appeared, Poole's case would be dismissed with prejudice. 632 F.Supp. 1172.

Poole subsequently filed several motions, including a motion for relief from the order, a motion to recuse the trial judge, and a motion for a continuance, in addition to a petition for a writ of habeas corpus ad testificandum to secure his presence at trial. The district court denied all of Poole's motions, and when none of Poole's witnesses appeared in court on the scheduled trial date, the district court entered an order dismissing the case with prejudice for failure to prosecute. Poole's appeal raises several issues, but he primarily challenges the propriety of the dismissal in light of the district court's failure to appoint counsel or to secure his presence for trial. Although we recognize the special problems that prisoner cases such as this create for district courts, under the particular

circumstances of this case we hold that the dismissal of appellant's lawsuit with prejudice is an unduly severe sanction.

DISCUSSION

A civil litigant, including a prisoner pursuing a section 1983 action, has no absolute constitutional right to the appointment of counsel. Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir.1985); Mekdeci v. Merrell Nat'l Laboratories, 711 F.2d 1510, 1522 n. 19 (11th Cir.1983). The appointment of counsel is instead a privilege that is justified only by exceptional circumstances, such as where the facts and legal issues are so novel or complex as to require the assistance of a trained practitioner. Wahl, 773 F.2d at 1174; see also Knighton v. Watkins, 616 F.2d 795, 799 (5th Cir.1980) (it is a service to both the court and the plaintiff for counsel to explain applicable legal principles and to limit litigation to potentially meritorious issues).

Moreover, lawful incarceration necessarily limits an inmate's right to plead and manage his own case personally. See Price v. Johnston, 334 U.S. 266, 285-86, 68 S.Ct. 1049, 1059-60, 92 L.Ed. 1356 (1948). Thus, in the present case, Poole has no absolute right to be present at the trial of his civil action. ¹ The decision to issue a writ of habeas corpus ad testificandum to permit a prisoner to be present for his own trial is a matter committed to the sound discretion of the district court. Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir.1977) (citations omitted). In determining whether to issue such a writ, our precedent counsels that the district court should consider such factors as "whether the prisoner's presence will substantially further the resolution of the case, the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted." Id. (citation omitted). The Ballard court specifically directed, however, that a district court should not base its discretion on the probability that a prisoner will succeed on the merits of his claim, because such a factor focuses on the ultimate result of the action rather than on the need for the prisoner's testimony vis-a-vis the difficulties attendant in securing it. Id. at 481.

The district court in this case never expressly ruled on Poole's motion for appointment of counsel. Although the court did consider Poole's motion for a writ of habeas corpus ad testificandum, it apparently examined only one of the several factors enumerated in Ballard, i.e. the expense of transporting Poole to Atlanta for trial. In light of the district court's failure to rule on Poole's motion for counsel and the court's failure to consider all the Ballard factors, a dismissal based upon the non-appearance of Poole's witnesses is too harsh a result. Cases from other circuits support our conclusion that a dismissal for...