United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S
MOTIONS REQUESTING APPOINTMENT OF COUNSEL (DKTS. 134, 143)
PLAINTIFF'S REQUESTS FOR SUBPOENAS (DKTS. 135,
Honorable Ronald E. Bush, Chief U.S. Magistrate Judge.
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.
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).
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.
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
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).
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.
Plaintiff's Requests for Counsel Are Granted in Part and
Denied in Part.
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.
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.
Plaintiff's Requests for Subpoena Are Denied, ...