Spears v. United States, Civ. A. No. 2297.

• Decision Date: 06 April 1967
• Docket Number: Civ. A. No. 2297.
• Citation: 266 F. Supp. 22
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Gilbert Lewis SPEARS, Plaintiff, v. UNITED STATES of America, United States Deputy Marshal Menis Adkins, Dr. Tom J. Altizer, and Cabell Huntington Hospital, Defendants.

266 F. Supp. 22

Gilbert Lewis SPEARS, Plaintiff, v. UNITED STATES of America, United States Deputy Marshal Menis Adkins, Dr. Tom J. Altizer, and Cabell Huntington Hospital, Defendants.

Civ. A. No. 2297.

United States District Court S. D. West Virginia, Huntington Division.

April 6, 1967.

COPYRIGHT MATERIAL OMITTED

Gilbert Lewis Spears, pro se.

Milton J. Ferguson, U. S. Atty., Huntington, W. Va., for defendant, the United States.

W. Warren Upton, Asst. U. S. Atty., Charleston, W. Va., for defendant U. S. Deputy Marshal Menis Adkins.

No appearance for defendant Dr. Tom J. Altizer.

Edward W. Eardley, Steptoe & Johnson, Charleston, W. Va., for defendant Cabell Huntington Hospital.

CHRISTIE, District Judge:

This civil action is to recover damages for personal injuries under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., for certain alleged tortious acts that took place while plaintiff was in the custody of a federal officer prior to his having pleaded guilty to a charge of armed robbery and for which he was sentenced to a term of 15 years imprisonment by this Court. Plaintiff sought and was granted leave, under 28 U.S. C.A. § 1915(a),¹ to proceed in forma pauperis, and his pro se pleadings, motions, et cetera, indicate he has a workable knowledge of the legal process.

Service of process was effected upon all defendants save and except Dr. Tom J. Altizer, and plaintiff has moved, under 28 U.S.C.A. § 1404(a), for partial transfer, insofar as his action pertains to Dr. Altizer, to the United States District Court for the Eastern District of Virginia where Dr. Altizer now resides. He has also moved, under 28 U.S.C.A. § 1915(d),² for appointment of counsel. The defendants, United States of America, Menis Adkins and Cabell Huntington Hospital, have severally moved for dismissal upon the pleadings on a variety of grounds. The various motions will be treated separately.

APPOINTMENT OF COUNSEL

Plaintiff is laboring under some misconceptions insofar as the right to have counsel appointed in a civil case is concerned. While the case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and subsequent developments³ have greatly expanded the 6th Amendment's guarantee of right to counsel in criminal cases where one's liberty is at stake,⁴ they have no application to matters purely of a civil nature. Kregger v. Posner, 248 F.Supp. 804 (D. C.Mich.1966). Indeed, 28 U.S.C.A. § 1915(d) protects no right, rather it creates a privilege, the exercise of which rests in the sound discretion of the Court. United States ex rel. Gardner v. Madden, 352 F.2d 792 (9th Cir. 1965); Moss v. Thomas, 299 F.2d 729 (6th Cir. 1962). In fact, in civil matters the Court's power is limited to requesting an attorney to represent an indigent rather than directing him to do so. Reid v. Charney, 235 F.2d 47 (6th Cir. 1956).

Likewise, whether institution of an action in forma pauperis under 28 U. S.C.A. § 1915(a) will be entertained at all is directed to the Court's discretion, Cole v. Smith, 344 F.2d 721 (8th Cir. 1965). And the fact that the privilege was granted in this instance does not indicate that the Court is willing to assume the responsibility of securing counsel to prosecute plaintiff's purely private claim for monetary damages. By analogy, it may be noted that it is generally held that the 6th Amendment that gives right of counsel to the accused in a criminal case does not apply to post-conviction proceedings because of their civil nature, even though in such cases the personal liberty of the person is involved. United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (2d Cir. 1964); Dillon v. United States, 307 F.2d 445 (9th Cir. 1962); La Clair v. United States, 374 F.2d 486 (7th Cir. 1967). Our own Fourth Circuit has likewise denied the existence of the right in parole revocation hearings, Jones v. Rivers et al., 338 F.2d 862 (1964) and Gaskins v. Kennedy et al., 350 F.2d 311 (1965), where the liberty of the parolees was also involved. Likewise, our research has failed to reveal any established rule of due process that extends the right to a plaintiff in purely civil litigation such as here involved.

Thus, it is seen that an indigent party in a civil case only has a privilege, and that privilege is to request the Court in the exercise of its discretion to appoint counsel for him. The general rule seems to be that, before the Court is justified in exercising its discretion in favor of appointment, it must first appear that the claim has some merit in fact and law. Ligare v. Harries, 128 F.2d 582 (7th Cir. 1942); Jefferson v. Heinze, 201 F.Supp. 606 (D.C.Cal.1962); De Maris v. United States, 187 F.Supp. 273 (D.C.Ind.1960); Miller v. Pleasure, 296 F.2d 283 (2d Cir. 1961); Urbano v. Sondern et al., 41 F.R.D. 355 (D.C. Conn.1966). Were it otherwise, the appointment in most instances would work a hardship on counsel with no concomitant benefit to the party requesting it.

While it is the recognized duty of the Court to be alert to the protection of indigents in their lawful rights, this does not mean that it must open its forum to obviously frivolous and dubious claims under whatever guise they may be presented. Nor do we perceive it to be our obligation to request a member of the bar to undertake the prosecution of a claim that is patently without substance in law or fact. For, as was aptly pointed out by Judge Boreman, speaking for the court in Jones, supra, "some consideration should be shown for the members of the legal profession also and their rights to provide for their dependent loved ones and to build some semblance of financial protection and security against the time when they may be forced by age or disability to discontinue the practice of their profession."

Here the plaintiff has made no allegation or showing that he has tried and been unsuccessful in procuring counsel to accept his case on a fee basis contingent on a recovery, and there are no organized legal aid programs in any of the counties comprising this division of the court to which plaintiff's case can be assigned. The attorneys at the bar of this court in this division, even before the enactment of the Criminal Justice Act, have been most cooperative in accepting appointment whenever called upon to do so. This is true in both criminal and post-conviction proceedings and we have no reason to believe that an attorney would not respond in this instance, without any expectation of pay, if the Court requested him to do so. But in such matters, we are mindful of what Lincoln once said, "A lawyer's time and advice is his stock in trade," and we do not believe they should be expropriated except for compelling reasons. Thus, in this instance, before we would be justified in preempting the attorney's "stock in trade" in behalf of the plaintiff, we conceive it to be our duty to first ascertain that the claim asserted has some substantial merit.

Our task in this regard is made easier by reason of the fact that we are thoroughly familiar with the historical background of the grievance complained of. This is so because of a post-conviction hearing we granted the plaintiff under 28 U.S.C.A. § 2255, wherein evidence was heard relating to the tortious act upon which this civil action is predicated. The issues raised in that proceeding were decided by this Court against the plaintiff (250 F.Supp. 698), which decision was later affirmed on appeal. The view we take of the present case is that if there be any need for legal representation, for the reasons hereinafter assigned, such need would only go to plaintiff's claim against the United States of America, and that claim relates to the alleged failure of the deputy marshal to protect the plaintiff from the infliction of alleged mistreatment by Dr. Tom Altizer in the course of his examination of the plaintiff at Cabell Huntington Hospital to determine whether he was unconscious or simply feigning unconsciousness.

At the 2255 hearing, the plaintiff contended, among other things, that his plea of guilty was psychologically induced by rough and inhumane treatment at the hands of Dr. Altizer in that the doctor squeezed or crushed his testicles. The examination was made necessary when the plaintiff has previously staged a "falling out scene" in the United States Commissioner's office where he had been taken for the purpose of a preliminary hearing. He was immediately taken to the hospital by the deputy marshal and there turned over to Dr. Tom Altizer for examination. The doctor testified at the 2255 hearing that squeezing one's testicles is an approved and accepted method by the medical profession to determine whether one is really unconscious or is only feigning unconsciousness; that in applying this test to the plaintiff he used no more pressure or force than was necessary to make the diagnosis, and that the test thus applied proved the plaintiff was in fact feigning unconsciousness. The plaintiff, though represented at the 2255 hearing by two highly competent court-assigned attorneys, produced no evidence that the test used was not a medically recognized means of detecting feigning in such circumstances, nor that more force was used than was prudent and necessary, nor that the plaintiff suffered any injury therefrom. The uncontradicted evidence further showed that the deputy marshal did not enter the examination room and did not see or supervise the examination in any way, and even if it could in some way be shown that the doctor applied more force than was necessary under the circumstances, it would be unreasonable to charge the deputy marshal with the duty of foreseeing such a result. The law does not require omniscience.

At this point it is noteworthy to point out in regard to plaintiff's motion for appointment of counsel that one of the grounds assigned by him for 2255 relief was that of ineffective representation by his self-employed attorney at his arraignment and sentencing. This...