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Bowers v. Power

United States District Court, M.D. Tennessee, Nashville Division

April 16, 2018

DYLAN C. BOWERS, # 401703, Plaintiff,
v.
JACGULINE POWER, et al., Defendants.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

         Dylan C. Bowers, an inmate of the Metro-Davidson County Detention Facility in Nashville, Tennessee, brings this pro se, in forma pauperis action under 42 U.S.C. § 1983 against Core Civic R-Dap Program Manager Jacguline Power, Core Civic Unit Manager Darryl Jones, Core Civic Correctional Officer Jacob Jarrail Lowe, Core Civic Head Warden Blair Lebach, and Core Civic, alleging violations of the Plaintiff's federal constitutional and civil rights. (Doc. No. 1). The Plaintiff also has filed a motion to amend his complaint (Doc. No. 6) and a motion for the appointment of counsel (Doc. No. 13).

         The complaint is before the Court for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. Motion to Amend

         The Plaintiff has filed an amended complaint, which the Court construes as a motion to amend the complaint. (Doc. No. 6). Rule 15(a) (2) of the Federal Rules of Civil Procedure states that leave to amend should be freely given “when justice so requires.” In deciding whether to grant a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment. Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005).

         The proposed amendments to the complaint provide additional context for the claims raised in the original complaint. No new Defendants or claims are added. There appears to be no undue prejudice to the opposing party by permitting the Plaintiff to amend his complaint at this time; the Defendants have not been served. The Court therefore will grant the motion to amend and screen the original complaint, as informed by the Plaintiff's proposed amendments to the original complaint, pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A.

         II. Motion for the Appointment of Counsel

         The Plaintiff recently filed a motion requesting the appointment of counsel “to represent the Plaintiff in this matter, for discovery purposes as well as for the evidentiary hearing that this Honorable District Court might (and for which the Plaintiff prays that it does) order, for the interests of justice so require that such is ordered.” (Doc. No. 13 at 4). He states that he is unable to afford an attorney, he needs an attorney to assist him with an evidentiary hearing and discovery in this case, and his imprisonment limits his ability to litigate effectively because the facility in which the Plaintiff is presently incarcerated “does not provide for direct access to legal materials.” (Id. at 2-3). According to the Plaintiff, in lieu of direct access to legal materials, inmates at the Metro-Davidson County Detention Facility have access to contractual services provided by a “CCA” attorney; however, “the CCA Contractual Attorney is not authorized to provide meaningful and/or expert services to the Plaintiff, thus warranting and necessitating the appointment of counsel.” (Id. at 2). The Plaintiff cites to a “Confidential Request for Attorney Conference specifying the services provided by the CCA Contractual Attorney, Form 14-8A (Revised 4/1/98)” but no such form is attached to his motion. (Id. at 2-3 n.1).

         The Supreme Court has held that “an indigent's right to appointed counsel . . . exists only where the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. Dep't of Social Servs., 452 U.S. 18, 25 (1981). Thus, unlike criminal proceedings, there is no constitutional right to an appointed counsel in a civil action, such as this action. Willett v. Wells, 469 F.Supp. 748, 751 (E.D. Tenn. 1977), aff'd, 595 F.2d 1227 (6th Cir. 1979); Williamson v. Autorama, Inc., No. 91-5759, 947 F.2d 947 (6th Cir. 1991)(citing Willett favorably). The appointment of counsel for a civil litigant is a matter within the discretion of the district court and will occur only under exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993).

         The Plaintiff's circumstances as described are typical to most prisoners. See Murray v. Giarratano, 492 U.S. 1, 7 (1989) (pro se litigant); Richmond v. Settles, 450 Fed. App'x 448, 452-53 (6th Cir. 2011) (indigent litigant); Debow v. Bell, No. 3:10-cv-1003, 2010 WL 5211611, at *1 (M.D. Tenn. Dec. 15, 2010) (inmates are typically indigent and untrained, pro se litigants). However, the Plaintiff's contention that inmates at his facility are not provided access to legal materials gives the Court pause. The Plaintiff specifically asks for the appointment of counsel with respect to discovery and an evidentiary hearing in this case. At this time, discovery has not commenced and no evidentiary hearing is scheduled. The Plaintiff has filed a complaint (Doc. No. 1), an application to proceed in forma pauperis (Doc. No. 7), an amended complaint (Doc. No. 6), a motion for the appointment of counsel (Doc. No. 13), and seven letters to the Court (Doc. Nos. 3, 5, 8, 9, 10, 11, 12); he is effectively representing his own interests to date. Therefore, at this time the Court will deny the Plaintiff's motion for the appointment of counsel without prejudice to the Plaintiff's ability to refile the motion at the appropriate time. If the Plaintiff refiles his motion, he should provide the Court with more information regarding the lack of inmate access to legal materials as well as the Form 14-8A referenced in his instant motion to appoint counsel.

         III. PLRA Screening Standard

         Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss any portion of a civil complaint filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, ” id. § 1915A(a), and summary dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. § 1915A(b).

         The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim under those statutes because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Thus, to survive scrutiny on initial review, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).

         Although pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), the courts' “duty to be ‘less stringent' with pro se complaints does not require us to conjure up ...


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