Opinion
Case No. CV 12-01068 DDP (JCx)
04-10-2015
DERRICK HOWARD, Plaintiff, v. FARMERS INSURANCE COMPANY, INC.; MID-CENTURY INSURANCE COMPANY; et al. Defendants.
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
[Dkt. No. 103]
Presently before the Court is Plaintiff's Motion for Appointment of Counsel. (Dkt. No. 103.) Plaintiff is an inmate at United States Penitentiary Coleman II in Florida; the claims of his complaint arise from an insurance contract relating to a rental property in Missouri that Plaintiff owns or owned. (Dkt. No. 3.) In other words, it is a private civil dispute, not a criminal matter, a civil rights claim, or even a civil dispute with the Bureau of Prisons.
Plaintiff nonetheless asks that the Court request an attorney to represent him under 28 U.S.C. § 1915(e)(1). That section allows the court "to request volunteer counsel for indigent plaintiffs," although "the court has no power to make a mandatory appointment." Zachow v. City of Portland, Or., No. 3:14-CV-00140-JE, 2014 WL 1236371, at *3 (D. Or. Mar. 25, 2014). Plaintiff argues that appointment of volunteer counsel "would assist the court as well as all parties involved," because, as an inmate, he is unable to conduct discovery, depose witnesses, or timely respond to pleadings, discovery, or court orders. (Motion at 3.)
Plaintiff is correct that his status as an inmate hinders the timely and orderly resolution of this litigation. (See, e.g., Dkt. No. 90 (order modifying scheduling order because discovery is delayed by being sent back and forth through the prison mail system).) The parties' frustration with this fact is understandable. However, there are several good reasons not to request counsel under § 1915(e)(1).
First, request of counsel in private, commercial lawsuits is vanishingly rare. After diligent search, the Court has found only one case in which a private plaintiff was appointed counsel in a suit against a non-government-affiliated private defendant. In that case, the plaintiff had brought a claim for conversion against his former attorney, who had allegedly sold the plaintiff's car without his permission while the plaintiff was in prison. Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971). As a criminal defense attorney's misconduct against his client implicates due process and other constitutional guarantees, that case may be unique and limited to its facts.
In a case much like this one, on the other hand, the Western District of Wisconsin noted:
I believe that the court of appeals did not intend district courts to evaluate the need for counsel in personal injury lawsuits in the same manner as in federal question litigation. The primary reason is that personal injury claims have an economic value that makes meritorious claims attractive to lawyers without any need for judicial intervention . . . . It might be somewhat more difficult for a prisoner to find legal representation because he is not able to make a personal visit to the lawyer's office, but there is no reason to believe that any prisoner with a meritorious personal injury claim could not find a capable lawyer willing to provide representation. If counsel refuse to take the claim because it appears unlikely to succeed . . . there is no reason for the court to intervene to require a lawyer to proceed with prosecution of the claim.Lipscomb v. Gen. Foods Corp., 615 F. Supp. 254, 257 (W.D. Wis. 1985). Similarly, in a suit like this one, which involves claims against an insurer under a statute that provides for attorney's fees, Mo. Ann. Stat. § 375.296, it seems likely that a plaintiff with a meritorious case could reach some sort of contingency agreement with a private attorney.
Even assuming § 1915(e)(1) applies to lawsuits between private parties, it might be reasonable in such cases to demand that the indigent litigant make at least some attempt to secure private counsel before asking the court to appoint counsel. See, e.g., Bracey v. Grondin, 712 F.3d 1012, 1016 (7th Cir. 2013) (requiring an indigent litigant to "make reasonable efforts at finding counsel himself"). Plaintiff has not shown that he has attempted to obtain private counsel in this case or argued that it would be impractical for him to do so.
Additionally, when a court asks an attorney to represent an indigent party, what gives heft to that request is not that it is mandatory (it is not), but that attorneys have a non-binding moral and professional obligation to provide the indigent with some access to legal services. See, e.g., Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310-11 (1989) (Kennedy, J., concurring) ("Lawyers, like all those who practice a profession, have obligations to their calling which exceed their obligations to the State . . . . Accepting a court's request to represent the indigent is one of those traditional obligations."). Because pro bono representation is a limited resource, the Court should lean on that obligation primarily in cases where the gravest harms to justice are likely to occur, such as in civil rights claims.
Moreover, appointment of counsel under § 1915(e)(1) "is granted only in exceptional circumstances," and requires an evaluation of "at least" the likelihood of success on the merits and the indigent plaintiff's "ability to articulate his claims in light of the complexity of the legal issues involved." Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (internal quotation marks omitted). While Plaintiff's likelihood of success on the merits is hard to estimate at this stage, if he is likely to succeed, that suggests, as noted above, that he could probably find a private attorney to take the case for him. As to the other prong, Plaintiff has clearly and capably articulated his claims, which do not seem legally complex, in his Complaint. Plaintiff's motion is based on the practical hurdles he faces in this litigation, not on an inability to understand and argue the law. The Court does not find that "exceptional circumstances" are present here.
The motion for request of counsel is DENIED. However, recognizing the unusual circumstances under which the parties are forced to litigate, the Court is willing to work flexibly with them on scheduling and other issues that are impacted by Plaintiff's incarcerated status. IT IS SO ORDERED. Dated: April 10, 2015
/s/
DEAN D. PREGERSON
United States District Judge