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Smith v. Vines

United States District Court, W.D. Tennessee, Western Division

May 28, 2015

WARREN P. SMITH, Plaintiff,
v.
INVESTIGATOR B. VINES, et al., Defendants.

ORDER DENYING MOTION FOR DEFAULT (ECF No. 11) ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL (ECF Nos. 17 & 19) ORDER DISMISSING CASE CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

JAMES D. TODD, District Judge.

On August 5, 2014, Plaintiff Warren P. Smith, booking number 13136262, a pretrial detainee at the Shelby County Criminal Justice Complex in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued on August 6, 2014, the Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The Clerk shall record the defendants as the Investigator B. Vines, Sergeant J.A. Jones, and Shelby County District Attorney General Amy P. Weirich.[1]

On August 15, 2014, Plaintiff filed a supplemental complaint seeking to name his public defender K. Leslie Mozingo as an additional defendant. (ECF No. 5.) The Clerk is directed to add K. Leslie Mozingo to the docket as a defendant.

On February 9, 2015, Plaintiff filed a motion for a default judgment. (ECF No. 11.) The United States Court of Appeals for the Sixth Circuit has issued an administrative order which states:

Even if a non-prisoner pays the filing fee and/or is represented by counsel, the complaint must be screened under § 1915(e)(2). The language of § 1915(e)(2) does not differentiate between cases filed by prisoners and cases filed by non-prisoners. The screening must occur even before process is served or the individual has had an opportunity to amend the complaint. The moment the complaint is filed, it is subject to review under § 1915(e)(2). If the complaint falls within the requirements of § 1915(e)(2) when filed, it must be dismissed.

In Re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (articulating how district courts should apply the PLRA). Screening of pro se complaints must occur before process issues. No process issued in this case. Plaintiff's motion for a default (ECF No. 11) is DENIED.

On April 27 and May 1, 2015, Plaintiff filed motions for appointment of counsel. (ECF Nos. 17 & 19.) Pursuant to 28 U.S.C. 1915(d), the "court may request an attorney to represent any such person unable to employ counsel." However, "[t]here is no constitutional or... statutory right to counsel in federal civil cases." Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993), and "1915(d) does not authorize the federal courts to make coercive appointments of counsel" to represent indigent civil litigants, Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). Generally, a court will only appoint counsel in exceptional circumstances. Willett v. Wells, 469 F.Supp. 748, 751 (E.D. Tenn. 1977). Although "no comprehensive definition of exceptional circumstances is practical, " Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982), courts resolve this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Examining the pleadings and documents in the file, the Court analyzes the merits of the claims, the complexity of the case, the pro se litigant's prior efforts to retain counsel, and his ability to present the claims. Henry v. City of Detroit Manpower Dep't, 763 F.2d 757, 760 (6th Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985).

As a general rule, counsel should be appointed in civil cases only if a litigant has made "a threshold showing of some likelihood of merit." Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989). Plaintiff has not satisfied that standard. Plaintiff's complaint is to be dismissed. The motions for appointment of counsel (ECF Nos. 17 & 19) are DENIED.

Plaintiff sues the defendants for false imprisonment on a charge of rape. Plaintiff seeks money damages. By way of background, a Shelby County grand jury issued Indictment Number 14-01583 on April 3, 2014, charging Smith with aggravated rape. See http://jssi.shelbycountytn.gov/. The case is set for trial on August 3, 2015.

The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune ...

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