United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION TO APPOINT COUNSEL, DISMISSING
COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD
FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING
D. TODD UNITED STATES DISTRICT JUDGE
April 18, 2017, Plaintiff Greg Moody, who is currently
incarcerated at the Bledsoe County Correctional Complex
(“BCCX”) 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 & 2). 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.) The Clerk shall record
the Defendants as the State of Tennessee, Dyer County Circuit
Court Judge Russell Lee Moore, Attorney Charles Phillip
Bivens, and Attorney Jim Horner.
April 18, 2017 Moody filed a motion to appoint counsel. (ECF
No. 3.) Pursuant to 28 U.S.C. § 1915(e)(1), the
“court may request an attorney to represent any such
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).
case, Plaintiff has not satisfied his burden of demonstrating
that the Court should exercise its discretion to appoint
allegations of the complaint are not entirely coherent. Moody
alleges that Defendant Bivens was a “hired
attorney” for him and his mother “from 1988
through 199? during such period he misrepresented me and also
prosecuted me.” (ECF No. 1 at 3-4.) If the assertion is
that while a criminal case was proceeding against Moody,
Bivens was both prosecuting Moody in that criminal case and,
at the same time, also attempting to represent Moody and his
mother in a different matter, the Court finds such an
allegation highly improbable. In any event, Moody then
alleges that Defendant Horner, who he identifies as a former
prosecutor, was appointed to represent him; he alleges this
violated attorney client privilege and prejudiced the court.
(Id. at 4.) In 2004 and 2009, Defendant Moore
allegedly denied Moody's right to counsel and to a speedy
trial or disposition. (Id.)
contends he was extradited in 2013 and that Defendants Moore
and Bivens used a failure to appear warrant to intimidate him
from pursuing his rights. (Id.) Moody states that
his defense attorney, Todd Taylor, who is not named as a
defendant, appealed Moody's unspecified conviction, but
failed to act in Moody's best interest. (Id. at
4-5.) Moody alleges that from 2003 to 2013 he served time
pursuant to detainers from Dyer County for a probation
violation and felonious failure to appear. (Id. at
5.) He states that he requested disposition and
representation many times from 2008 to 2017. (Id. at
5.) Moody alleges that in 2017 Defendants Moore and Bivens
issued a capias warrant while Moody was on bond and
attempting to secure counsel, which was again denied.
seeks declaratory and injunctive relief in addition to
compensatory and punitive damages; he also asks that
Defendants Moore and Bivens be charged with criminal
intimidation. (Id. at 6-7.)
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 complaint in this case states a claim
on which relief may be granted, the court applies the
standards under Federal Rules of Civil Procedure 12(b)(6), as
stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79
(2009), and in Bell AtlanticCorp. 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 ...