Buzzard v. Robbins et al, No. 3:2014cv25533 - Document 87 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER denying 84 MOTION for Appointment of Counsel. Signed by Magistrate Judge Cheryl A. Eifert on 12/3/2014. (cc: attys; any unrepresented party) (skm)
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Buzzard v. Robbins et al Doc. 87 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION D AVID D EAN BU ZZARD , JR., Plain tiff, v. Cas e N o .: 3 :14 -cv-2 553 3 JOE D ELON G, Exe cu tive D ire cto r, W e s t Virgin ia Re gio n al Jail & Co rre ctio n al Facility Au th o rity; e t al., D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending is Plaintiff’s Motion for the Appointm ent of Counsel. (ECF No. 84). For the reasons that follow, the Court D EN IES the m otion at this tim e, without prejudice to reconsideration of Plaintiff’s request for counsel in the future. As Plaintiff acknowledges in his m otion, he has no constitutional right to counsel in a § 1983 action. 28 U.S.C. § 1915(e)(1) (20 10 ); see also Hardw ick v. Ault, 517 F.2d 295, 298 (5th Cir.1975). Although the Court has som e discretion to assign counsel in this case, the United States Court of Appeals for the Fourth Circuit has m ade it clear that the assignm ent of counsel in civil actions “should be allowed only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). When determ ining whether a particular case rises to that level, the Court m ust consider the com plexity of the claim s in dispute and the ability of the indigent party to present them . W hisenant v. Yuam , 739 F.2d 160 , 163 (4th Cir.1984); see also Branch v. Cole, 686 F.2d 264, 266. (“[N]o com prehensive definition of exceptional circum stances is practical. The existence of Dockets.Justia.com such circum stances will turn on the quality of two basic factors-the type and com plexity of the case, and the abilities of the individuals bringing it.” (footnote om itted)). Here, Plaintiff argues that his case m eets the definition of “exceptional” for several reasons. First, his incarceration prohibits him from interviewing witnesses and conducting a proper investigation to develop the facts. Second, he has not been trained in the art of cross-exam ination or in the Federal Rules of Civil Procedure. Finally, Plaintiff contends that the issues in dispute are com plex, and he is incapable of adequately presenting them . As proof of his position, Plaintiff points to several errors he has m ade to date in prosecuting his claim s. While Plaintiff’s incarceration undoubtedly m akes it m ore difficult for him to pursue his lawsuit, as does his lack of legal training, these lim itations do not, in and of them selves, satisfy the “exceptional” standard and merit the appointm ent of counsel. Louis v. Martinez, Case No. 5:0 8-cv-151, 20 10 WL 148430 2, at *1 (N.D.W.Va. Apr. 12, 20 10 ). Having reviewed Plaintiff’s filings, and interacted with him at the status conference, the undersigned finds Plaintiff to be surprisingly knowledgeable of the relevant law, articulate, and a com petent legal writer. Accordingly, Plaintiff is fully capable of presenting his claim s at this stage of the litigation. Plaintiff expresses concern over having his deposition taken in this civil action without the guidance of counsel. (See ECF No. 86). In particular, Plaintiff feels that he should be represented by an attorney when and if counsel for Defendants asks questions related to Plaintiff’s crim inal conduct (past or present). Plaintiff is rem inded that he m ay assert his Fifth Am endm ent right against self-incrim ination, if appropriate. Moreover, any questions asked by defense counsel m ust be relevant to the claim s and defenses at issue in this case. The parties are free to contact the Court during the deposition if an issue arises as to the legitim acy of the scope of counsel’s questioning. Fed. R. Civ. P. 30 (d)(3). Therefore, for the reasons stated, Plaintiff’s m otion for the appointm ent of counsel is D EN IED . It is so ORD ERED . The Clerk is instructed to provide a copy of this Order to Plaintiff, counsel of record, and any unrepresented party. EN TERED : Decem ber 3, 20 14
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