UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAVID ST. ANN, 

 Plaintiff 

v. 

TODD MCLEAN, et al., 

 Defendants. 

 

Case No. 5:15-11770 

District Judge Judith Levy 

Magistrate Judge Anthony P. Patti

___________________________________/ 

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR 

APPOINTMENT OF COUNSEL (DE 32) 

 This matter is before the Court for consideration of Plaintiff David St. Ann’s 

motion for appointment of counsel. (DE 32.) For the reasons that follow, 

Plaintiff’s motion is DENIED WITHOUT PREJUDICE. 

I. BACKGROUND 

 Plaintiff, a state prisoner who is proceeding in forma pauperis, brings this 

lawsuit under 42 U.S.C. § 1983 against various correctional officials, originally 

alleging claims regarding his remaining at Level IV (or maximum security/ 

disciplinary unit) following the February 14, 2014 expiration of his detention and 

loss of privileges. The Court has granted in part Defendants’ motion for summary 

judgment (DE 29), which resulted in the dismissal of many of Plaintiff’s original 

causes of action. Recently, however, the Court granted Plaintiff’s second motion 

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for leave to amend his complaint, which added another Defendant and a retaliation 

cause of action. (DE 30.) 

 Plaintiff filed this motion for appointment of counsel on November 4, 2016. 

(DE 32.) In his motion, he asks the court to appoint an attorney in this civil matter 

because he is unable to afford counsel and his imprisonment impinges on his 

ability to litigate the case successfully. 

II. ANALYSIS 

As a preliminary matter, although Plaintiff styles his motion as one for 

appointment of counsel, the Court does not have the authority to appoint a private 

attorney for Plaintiff in this civil matter. Proceedings in forma pauperis are 

governed by 28 U.S.C. § 1915, which provides that “[t]he court may request an 

attorney to represent any person unable to afford counsel.” 28 U.S.C. § 

1915(e)(1) (emphasis added). However, even if the circumstances of Plaintiff’s 

case convinced the Court to engage in such a search, “[t]here is no right to 

recruitment of counsel in federal civil litigation, but a district court has discretion 

to recruit counsel under 28 U.S.C. § 1915(e)(1).” Dewitt v. Corizon, Inc., 760 

F.3d 654, 657 (7th Cir. 2014) (emphasis added); see also Olson v. Morgan, 750 

F.3d 708, 712 (7th Cir. 2014) (“Congress hasn’t provided lawyers for indigent 

prisoners; instead it gave district courts discretion to ask lawyers to volunteer their 

services in some cases.”). 

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 The Supreme Court has held that there is a presumption that “an indigent 

litigant has a right to appointed counsel only when, if he loses, he may be 

deprived of his physical liberty.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26-

27 (1981). With respect to prisoner civil rights cases in particular, the Court of 

Appeals for the Sixth Circuit has held that “there is no right to counsel. . . . The 

appointment of counsel in a civil proceeding is justified only by exceptional 

circumstances.” Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004).1

 

Accordingly, although the Court has the statutory authority to request counsel for 

pro se plaintiffs in civil cases under 28 U.S.C. § 1915(e), the exercise of this 

authority is limited to exceptional situations. 

 In evaluating a matter for “exceptional circumstances,” a court should 

consider: (1) the probable merit of the claims, (2) the nature of the case, (3) the 

complexity of the legal and factual issues raised, and (4) the ability of the litigant 

to represent him or herself. Lince v. Youngert, 136 F. App’x 779, 782 (6th Cir. 

2005); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993); Lanier v. 

Bryant, 332 F.3d 999, 1006 (6th Cir. 2003). 

 Applying the foregoing authority, Plaintiff has not described circumstances 

sufficiently exceptional to justify a request for appointment of counsel. Plaintiff 

                                                            

1

 As noted above, although some of the case law colloquially discusses the Court’s 

“appointment” of counsel in prisoner rights cases, under 28 U.S.C. § 1915 the 

Court may only request that an attorney represent an indigent plaintiff. 

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contends that he is indigent and unable to afford counsel and his imprisonment 

will limit his ability to litigate this case, especially his ability to engage in 

discovery. Such factors would apply to nearly every pro se prisoner proceeding in 

forma pauperis, and do not constitute extraordinary circumstances. Further, 

despite Plaintiff’s claim to the contrary, the operative claims do not appear to 

involve especially complex issues. Moreover, Plaintiff’s pleadings illustrate his 

ability to articulate his claims in a coherent manner and even the instant motion is 

clear in outlining his reasons for requesting the appointment of counsel. Finally, 

there is no indication that Plaintiff will be deprived of his physical liberty over and 

above his current sentence if he loses this civil case. 

 Accordingly, at this time, Plaintiff’s motion to appoint counsel is DENIED

WITHOUT PREJUDICE. (DE 8.) Plaintiff may petition the Court for the 

recruitment of pro bono counsel if this case survives dispositive motion practice, 

proceeds to trial, or if other circumstances demonstrate such a need in the future. 

IT IS SO ORDERED. 

Dated: November 10, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on November 10, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager to the 

 Honorable Anthony P. Patti 

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