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Carr v. Fleming

United States District Court, D. Idaho

March 28, 2019

JODY CARR, Plaintiff,
C/O FLEMING, and SGT. MECHTEL, Defendants.


          Honorable Ronald E. Bush, Chief U.S. Magistrate Judge.

         Pending are Plaintiff's Motion Requesting Appointment of Counsel Due to Exceptional Circumstances (Dkt. 134), Plaintiff's Requests for Subpoenas Duces Tecum (Dkt. 135), Plaintiff's Requests for Subpoenas (Dkt. 136), and Plaintiff's Motion for Appointment of Counsel Due to Exceptional Circumstances (Dkt. 143). Having carefully considered the record, and being fully advised, the Court enters the following memorandum decision and order.


         Plaintiff Jody Carr is incarcerated in the custody of the Idaho Department of Correction. Am. Compl. p. 2 (Dkt. 103). He brought this suit under 42 U.S.C. § 1983, seeking damages, declaratory relief, and injunctive relief. See generally Compl. (Dkt. 3). His Complaint raised various civil rights claims against four Idaho Department of Correction employees. Id. Carr's claims were dismissed on summary judgment and the case was ordered closed (Dkts. 78, 79). Carr appealed (Dkt. 83) and the Ninth Circuit Court of Appeals affirmed in part and reversed in part this Court's grant of summary judgment. (Dkt. 92). The appellate court reversed (1) the grant of summary judgment to Defendant Fleming; and (2) the denial of Carr's motion for leave to file an amended complaint to add a retaliation claim against Sergeant Mechtel. (Dkt. 92.) Subsequently, Carr's amended complaint was deemed filed (Dkt. 103).

         Carr's amended complaint raises three claims. He alleges that Defendant correctional officer Crystal Fleming placed human feces into his food without his knowledge. He alleges that the feces, and therefore also the food he consumed, was contaminated with clostridium difficile bacteria which caused him to become violently ill for a period of 16 months. Id. He claims that in doing that act Fleming violated his civil rights by retaliating against him, by inflicting cruel and unusual punishment, and by demonstrating deliberate indifference to his health and welfare. Id. He further alleges that Defendant Sergeant Mechtel issued him two Disciplinary Offense Reports (“D.O.R.s”) after Carr sent Fleming what Carr contends was a “settlement letter” in conjunction with this lawsuit. Id. Carr claims that Mechtel violated his civil rights by issuing the D.O.R.s to retaliate against Carr engaging in his protected First Amendment rights in sending the letter. Id.

         This Court previously denied (Dkt. 142) two motions for partial summary judgment filed by Carr. Defendants have filed a motion for summary judgment (Dkt. 145) that remains pending and is not resolved by the instant memorandum decision and order.


         Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court's discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

         In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To determine whether exceptional circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate the claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive and both must be evaluated together. Id.


         1. Plaintiff's Requests for Counsel Are Granted in Part and Denied in Part.

         The Court concludes that Carr has demonstrated some likelihood of success in this litigation and that the complexity and novelty of the issues would support the appointment of pro bono counsel. Moreover, Carr's filings allege that he is “having difficulties with a paralegal … refusing to mail my documents” and that the first mailing of one of the instant motions was apparently unsuccessful. (Dkt. 136-1.) A credible claim that his access to the courts is being restricted presents another circumstance supporting the appointment of pro bono counsel. The Court has determined that it is appropriate to appoint counsel if possible. Good cause appearing, the Court will order that court staff begin a search for pro bono counsel for Carr.

         Carr is advised, however, that the federal court has no authority to require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(d). Mallard v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 298 (1989). Rather, when a court “appoints” an attorney, it can only do so if the attorney voluntarily accepts the assignment. Id. There are no funds to pay the attorney's fees of appointed counsel in civil matters such as this one, and it is often difficult to find attorneys willing to work on a case without payment. For these reasons, Carr should continue to attempt to obtain his own counsel on a contingency or other basis. If the Court is unable to locate pro bono counsel, and if Carr is unable to find his own counsel, then he will have to continue to litigate this case pro se. Thus, Carr's motions requesting the appointment of counsel are granted to the extent that the Court will seek to locate pro bono counsel. The motions are otherwise denied.

         2. Plaintiff's Requests for Subpoena Are Denied, ...

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