United States District Court, M.D. Tennessee, Nashville Division
DYLAN C. BOWERS, # 401703, Plaintiff,
JACGULINE POWER, et al., Defendants.
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
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).
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.
Motion to Amend
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).
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)
Motion for the Appointment of Counsel
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
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.
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
PLRA Screening Standard
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).
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)).
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