Watson v. McPhatter

• Decision Date: 11 February 2022
• Docket Number: 1:17CV934
• Parties: TRAVIS L. WATSON, Plaintiff, v. DETECTIVE MCPHATTER, et al., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

TRAVIS L. WATSON, Plaintiff, v. DETECTIVE MCPHATTER, et al., Defendants.

No. 1:17CV934

United States District Court, M.D. North Carolina

February 11, 2022

MEMORANDUM OPINION AND

L Patrick Auld United States Magistrate Judge

This case comes before the Court on Plaintiff's Motion for Appointment of Counsel (Docket Entry 83 (the “instant Motion”)), as well as his Counsel Request (Docket Entry 127 (the “instant Request”)). Because the record does not reflect exceptional circumstances that would warrant the Court attempting to tap the limited pro bono resources available to it on Plaintiff's behalf (but instead reveals good reasons not to make any such attempt), the Court will deny the instant Motion and the instant Request.^[1]

INTRODUCTION

The Court (per the undersigned United States Magistrate Judge) permitted Plaintiff to proceed as a pauper in this action which he brought under 42 U.S.C. § 1983. (See Docket Entry 3 at 1; see also Docket Entry 2 at 2-3 (naming three detectives employed by City of Greensboro as Defendants).) After discovery closed, the Court (per United States District Judge Loretta C. Biggs) entered summary judgment for Defendants on all of the claims in this action except as “to Detective Altizer on Plaintiff's fourth-amendment claim for illegal searches of his mail.” (Docket Entry 53 at 1; see also Docket Entry 61 at 2 (dismissing Plaintiff's interlocutory appeal of that order).) The Clerk subsequently set a trial date of May 2, 2022. (See Docket Entry 81 at 1.)

Plaintiff, in turn, filed the instant Motion, pursuant to “28 U.S.C. [§] 1915(e)(1)” (Docket Entry 83 at 1), “mov[ing] the [C]ourt for an order appointing counsel in this case” (id.), based on this showing:

1. [Plaintiff] is currently unable to afford counsel. He has requested leave to proceed In Forma Pauperis.

2. Issues involved in [Plaintiff's] case are complex and require the expert opinion and analytical skills of a Fraud Analyst and/or Counterfeit Document Analyst/Expert.

3. [Plaintiff] cannot currently afford to pay an expert.

4. A trial in this case will likely involve conflicting testimony and counsel would better enable [Plaintiff] in management of presenting his evidence and cross-examining witnesses.

(Id.; see also id. at 2 (“I have fraudulent and counterfeit documents in my possession that require an expert's examination for trial purposes.”).) Detective Altizer responded (see Docket Entry 90) and Plaintiff replied (see Docket Entry 107).

A short time later, Plaintiff filed the instant Request, which (A) notes the pendency of the instant Motion “requesting counsel which would assist him in fraud analyzation, presenting evidence, and cross[-]examination of witnesses” (Docket Entry 127 at 1), and (B) “ask[s] the [C]ourt to extend counsel's services to also assist [Plaintiff] in formally bringing criminal charges against the state actors in this case that have wrongfully engaged in criminal misconduct, colluded, and conspired to defraud [Plaintiff] of his [c]onstitutional [r]ights and [o]bstruct[ed j]ustice in [c]overing it up” (id.; see also id. at 1-2 (“[Plaintiff] needs counsel's assistance in assigning criminal liability in reference to the fraudulent documents in his possession . . . and certain substances that have been placed in [his] food and drink to prevent his voice from being heard on these matters.”)).^[2]

DISCUSSION

The statute cited by Plaintiff as authority for the relief he has sought states: “The court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). The language of that provision makes clear that “a plaintiff does not have an absolute right to appointment of counsel.” Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). In fact, in federal civil actions “there is no statutory provision for appointment of counsel. The statute [in question] says that a judge may ‘request' that an attorney represent a litigant and so [a motion for] ‘appointment of counsel' is actually a polite way of saying that [a court should] call[] multiple attorneys in an effort to get one of them to take a case for no pay.” Gruenberg v. Gempeler, 740 F.Supp.2d 1018, 1020 n.1 (E.D. Wis. 2010) (emphasis added), aff'd, 697 F.3d 573 (7th Cir. 2012); see also Mallard v. United States Dist. Ct. for S.D. of Iowa, 490 U.S. 296, 310 (1989) (holding that provision now codified at Section 1915(e)(1) “does not authorize the federal courts to make coercive appointments of counsel”); United States v. MacCollom, 426 U.S. 317, 321 (1976) (plurality) (“The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”); Evans v. Kuplinski, 713 Fed.Appx. 167, 170 (4th Cir. 2017) (“A pro se prisoner does not have a general right to counsel in a [Section] 1983 action.”); Taylor v. Pulliam, 679 Fed.Appx. 264, 266 (4th Cir. 2017) (“[C]ivil litigants have no constitutional right to counsel . . . .”); Geter v. Taharra, 429 Fed.Appx. 265, 266 (4th Cir. 2011) (“[T]here is no right to appointment of counsel in a civil case . . . .”); Valcarcel v. ABM Indus./Diversico Indus., 383 F.Supp.3d 562, 564 (M.D. N.C. 2019) (Schroeder, C.J.) (“This is a civil case. As such, [the plaintiff] is not constitutionally entitled to appointment of counsel.”); Clarke v. Blais, 473 F.Supp.2d 124, 125 (D. Me. 2007) (recognizing that, under Section 1915(e)(1), “there are no funds appropriated to pay a lawyer or even to reimburse a lawyer's expenses”); Osipova v. Home Energy Assistance Program, No. 85CIV4498, 1985 WL 3956, at *2 (S.D.N.Y. Nov. 26, 1985) (“[N]o public funds are available to compensate court-appointed counsel in civil cases.”).

Ultimately, judicial solicitation of the bar for free legal representation for a pro se party remains “a matter within the discretion of the [] Court. It is a privilege and not a right.” Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968). In delineating the scope of that discretion, the United States Court of Appeals for the Fourth Circuit has held that a pro se party “must show that his [or her] case is one with exceptional circumstances.” Miller, 814 F.2d at 966. “The question of whether such circumstances exist in any particular case hinges on characteristics of the claim and the litigant.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated in part on other grounds, Mallard, 490 U.S. at 300 & n.2. More pointedly, “[i]f it is apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him.” Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978).

Here (as noted in the Introduction), a trial will occur on Plaintiff's one claim that survived summary judgment, and the Court often looks to its Pro Bono Representation Program (“PBR Program”) “where summary judgment has been denied and the case is set for trial, ” Amended Standing Order No. 6 at 1 (M.D. N.C. Nov. 23, 2016); however, if the bare conclusion that record evidence “technically put a fact in issue and suffice[d] to avert summary judgment[] require[s] appointment of an attorney under § 1915[(e)(1)], the demand for such representation could be overwhelming, ” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989) (internal quotation marks omitted); see also Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014) (“[T]here are too many indigent litigants and too few lawyers willing and able to volunteer for these cases.”); McLeod v. Henderson, No. 98-1534-CIV-T-17A, 1999 WL 1427749, at *1 (M.D. Fla. Dec. 28, 1999) (unpublished) (“The number of volunteer lawyers willing to accept appointment in such cases on a pro bono publico basis is limited.” (italics omitted)). Accordingly, consistent with Section 1915(e)(1)'s plain language and the foregoing Fourth Circuit rulings, in utilizing the PBR Program, the Court retains “absolute discretion in making a determination of whether exceptional circumstances exist and whether appointment of a pro bono attorney is appropriate.” Amended Standing Order No. 6 at 1; see also Osipova, 1985 WL 3956, at *2 (“This [c]ourt is favored by a pro bono panel of attorneys who are able to volunteer limited amounts of their time[, ] but the judges exercise a necessary discretion in referring cases to the panel . . . .” (underscoring omitted)).

Furthermore on multiple occasions, the Fourth Circuit has upheld denials of requests for counsel under Section 1915(e)(1) in cases that proceeded to trial, even when the pro se plaintiffs' errant approach to trial-related matters (which they well might have altered with the aid/advice of counsel) appeared to have compromised their cases. See Underwood v. Beavers, 711 F. App'x 122, 123 (4th Cir. 2017) (“The record establishes that [the plaintiff] was capable of adequately presenting his claims, so the denial of his motions to appoint counsel was not an abuse of discretion. Next, although [the plaintiff] arguably challenges the jury verdict, he did not file a postverdict motion pursuant to Fed.R.Civ.P. 50 or 59(a) within 28 days of the judgment. Having failed to file such a motion, [the plaintiff's] challenge to the jury verdict is foreclosed.”); Clary v. Harper, 694 Fed.Appx. 913, 916-17 (4th Cir. 2017) (“[The plaintiff] asserts that the district court erred in denying him counsel, and he claims that, had he been provided with an attorney, . . . he would have prevailed at trial. . . . [T]he district court did not abuse its discretion in failing to appoint counsel for [the plaintiff]. . . . Regarding his trial, [the plaintiff's] own statements that [the defendant] meant [the plaintiff] no harm were fatal to his claim that [the defendant]...