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Moody v. State of Tennessee

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

March 23, 2018

GREG MOODY, Plaintiff,
v.
STATE OF TENNESSEE, ET AL., Defendants.

          ORDER DENYING MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

          JAMES D. TODD UNITED STATES DISTRICT JUDGE

         On April 18, 2017, Plaintiff Greg Moody, who is currently incarcerated at the Bledsoe County Correctional Complex in Pikeville, 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 & 4.) In an order issued April 21, 2017, 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. 5.) Moody's complaint concerns events occurring during his previous incarceration at the Dyer County Jail (Jail) in Dyersburg, Tennessee. The Clerk shall record the Defendants as the State of Tennessee, Sheriff Jeff Box, Dyer County, [1] Administrator Alan Bargery, Nurse Practioner Sherry Heathcott, and Paul Forrester.

         On May 18, 2017, Moody filed a motion for appointment of counsel. (ECF No. 6.) Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any person unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . . . .”). Appointment of counsel is “a privilege that is justified only by exceptional circumstances.” Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted). “In determining whether ‘exceptional circumstances' exist, courts have examined the type of case and the abilities of the plaintiff to represent himself. This generally involves a determination of the complexity of the factual and legal issues involved.” Id. at 606 (internal quotation marks and citations omitted). Appointment of counsel is not appropriate when a pro se litigant's claims are frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App'x 963, 965 (6th Cir. 2009) (same).

         At this stage of the proceeding, because the complaint is being dismissed with leave to amend, Plaintiff has not satisfied his burden of demonstrating that the Court should exercise its discretion to appoint counsel. Therefore, the motion for appointment of counsel is DENIED.

         I. The Complaint

         Moody's complaint merely provides a list of rights that he claims were denied by the Defendants: denial of medical treatment; denial of legal materials and access to the courts; denial of equal treatment and rights enjoyed by other prisoners; denial of outside recreation; denial of access to books and reading materials, including religious, legal and scholastic; denial of sentence credits and “gain time” for trustee work that was given to other inmates; and denial of items such as a back brace, neck brace, and pillow that are necessary because of injuries he previously suffered. (ECF No. 1 at 4, 7.) Moody states that he was involved in an accident in 2011 that caused severe injuries and brain trauma; as a result, he has serious memory problems. (Id. at 7.) However, he states the “facts will be shown by records and lack of records, ” (id. at 8), and that he relies on the courts and the law to see that gross errors and judgments violated his civil rights (id.).

         Moody seeks declaratory relief, punitive damages of $2 million, and medical treatment or accommodations. (Id. at 5.)

         II. Analysis

         A. Screening and Standard

         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 from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

         In assessing whether the 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 ...


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