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Moody v. State

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

March 27, 2018

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

          ORDER DENYING MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

          JAMES D. TODD UNITED STATES DISTRICT JUDGE

         On 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.

         On 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).

         In this case, Plaintiff has not satisfied his burden of demonstrating that the Court should exercise its discretion to appoint counsel.

         I. The Complaint

         The 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.)

         Moody 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. (Id.)

         Moody 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.)

         II. Analysis

         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 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 ...


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