United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING MOTION TO AMEND, DENYING REMAINING
MOTIONS, DISMISSING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE
TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE
THOMAS ANDERSON UNITED STATES DISTRICT JUDGE.
September 6, 2016, Plaintiff Warren Pratcher
(“Pratcher”), who is currently incarcerated at
the Shelby County Criminal Justice Center
(“Jail”) in Memphis, Tennessee, filed a Pro Se
Complaint pursuant to 42 U.S.C. § 1983 accompanied by a
motion to proceed in forma pauperis. (ECF Nos. 1
& 2.) The Court granted leave to proceed in forma
pauperis and assessed the civil filing fee pursuant to
the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk shall
record the defendants as Lieutenant (“Lt.”) First
Name Unknown (“FNU”) McCollum, Detective
(“Det.) William Acred, Det. Jonathan Overly, Sergeant
(“Sgt.”) K. Baker, Det. J. Henry, Det. J. Wright,
Det. B. Scott, Sgt. R. Simer, Det. FNU Goedecke, Det. D.
Knowlton, and Det. FNU Grigsby. Defendants are sued in their
individual and official capacities.
September 6, 2016, Pratcher filed a motion to appoint
counsel. (ECF No. 3.) 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).
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). Because Pratcher
has not met the threshold showing of likelihood of success,
the motion is DENIED.
alleges claims under the Fourth Amendment, deprivation of
liberty and property under the Due Process clause of the
Fourteenth Amendment, and the tort of intentionally
intercepting a wire, oral, or electronic communication.
(Compl. Attachment at 1, ECF No. 1-1.) Pratcher contends that
on September 13, 2014, he was arrested during the execution
of a search warrant on 7035 PackBrook Lane in Memphis,
Tennessee, and was subsequently indicted on two counts of
unlawful possession of a controlled substance with intent to
deliver in an amount greater than 300 grams. (Id. at
3.) Pratcher alleges that Defendants Acred and Overly
obtained the search warrant based on a series of illegally
intercepted communications and cell site information from
several cell phones. (Id.)
November 4, 2016, Pratcher filed a motion for leave to file
an amended complaint. (ECF No. 5.) Because the motion was
filed before the court screened his complaint and is intended
to supplement, rather than supersede the complaint, the
motion is GRANTED. In Pratcher's amended complaint he
adds that the information used to obtain the search warrants
was gathered by also using a stingray device. (Amended Compl.
at 3, ECF No. 5.) Pratcher seeks compensatory and punitive
damages. (Amended Compl. at 10-11.)
of additional background, on November 13, 2014, Pratcher was
indicted on two counts of violating Tenn. Code Ann. §
39-17-417. (https://cjs.shelbycountytn.gov Indictment No. 14
05852-1464445). On November 6, 2015, Pratcher pleaded guilty
to one count; the second count was dismissed. (Id.)
On December 30, 2016, Pratcher filed a petition for
post-conviction relief, which was denied on January 9, 2017.
Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the
(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 from
28 U.S.C. § 1915A(b); see also 28 U.S.C. §
assessing whether the Pro Se Complaint in this case states a
claim on which relief may be granted, the Court applies
standards under Federal Rule of Civil Procedure 12(b)(6), as
stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79
(2009), and in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010). “Accepting all
well-pleaded allegations in the complaint as true, the Court
‘consider[s] the factual allegations in [the] complaint
to determine if they plausibly suggest an entitlement to
relief.'” Williams v. Curtin, 631 F.3d
380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at
681) (alteration in original). “[P]leadings that . . .
are no more than conclusions . . . are not entitled to the
assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679; see
also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2)
still requires a ‘showing, ' rather than a blanket