1

The plaintiff purports to appeal to the Eleventh Circuit. (Id. at 1). This is a legal

impossibility, and review must be by the Court. Thomas v. Montgomery County Board of

Education, 169 Fed. Appx. 562, 565 n.4 (11th Cir. 2006). 

2

E.g.,id.; McNary v. Norman, 1998 WL 4738 at *3 (7th Cir. 1998); Ervin v. Craig,

1994 WL 143954 at *3 (9th Cir. 1994).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LEE CURTIS TATE, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0268-WS-M

 )

OFFICER ROCKFORD, et al., )

 )

Defendants. )

ORDER

The plaintiff in this prisoner action brought under 42 U.S.C. § 1983 has appealed

the Magistrate Judge’s order denying his motion to appoint counsel. (Doc. 24).1

 

Denial of a motion to appoint counsel is a non-dispositive ruling.2

 A Magistrate

Judge’s ruling on a non-dispositive matter must be affirmed unless “it has been shown

that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. §

636(b)(1)(A); accord Fed. R. Civ. P. 72(a); Local Rule 72.3(e). “The ‘clearly erroneous

or contrary to law’ standard of review is extremely deferential. ... Relief is appropriate

under the ‘clearly erroneous’ prong of the test only if the district court finds that the

Magistrate Judge abused [her] discretion or, if after reviewing the record as a whole, the

Court is left with a definite and firm conviction that a mistake has been made. ... With

respect to the ‘contrary to law’ variant of the test, an order is contrary to law when it fails

to apply or misapplies relevant statutes, case law or rules of procedure.” Pigott v. Sanibel

Development, LLC, 2008 WL 2937804 at *5 (S.D. Ala. 2008) (citations and internal

Case 1:09-cv-00268-WS-M Document 25 Filed 03/02/10 Page 1 of 3
-2-

quotes omitted). 

“A plaintiff in a civil suit has no constitutional right to counsel. A court may,

however, pursuant to 28 U.S.C. § 1915(e)(1), appoint counsel for an indigent plaintiff. 

The district court has broad discretion in making this decision, [citation omitted], and

should appoint counsel only in exceptional circumstances.” Bass v. Perrin, 170 F.3d

1312, 1320 (11th Cir. 1999). 

The primary exceptional circumstance arises when “the facts and legal issues are

so novel or complex as to require the assistance of a trained practitioner.” Poole v.

Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). This case presents a straightforward

claim of excessive force allegedly administered in a single incident witnessed by several

persons, as well as a claim for violation of due process in the context of the resulting

disciplinary proceeding (by not producing a witness for examination). There is nothing

factually or legally novel or complex presented by these claims, and the Magistrate Judge

did not abuse his discretion by so ruling. See, e.g., Dean v. Barber, 951 F.2d 1210, 1212,

1216 (11th Cir. 1992) (claim based on attack by another detainee, with the governmental

defendants’ liability based on inadequate security and lack of inmate classification, was

not so novel or complex as to require counsel). 

The plaintiff asserts that he lacks a high school education and is mildly retarded. 

(Doc. 24 at 1). “[A]ny mental impairment would likely be a relevant consideration in

determining whether counsel should have been appointed.” Smith v. Belle, 321 Fed.

Appx. 838, 846 (11th Cir. 2009). Accordingly, the Magistrate Judge considered “the

competence of Plaintiff.” (Doc. 21 at 1). Even accepting at face value the plaintiff’s

representation as to his mental acuity, “[t]he key is whether the pro se litigant needs help

in presenting the essential merits of his or her position to the court.” Kilgo v. Ricks, 983

F.2d 189, 193 (11th Cir. 1993). Given the straightforward nature of the plaintiff’s claims,

the Magistrate Judge did not abuse his discretion in concluding that the plaintiff is

capable of presenting his case. 

Case 1:09-cv-00268-WS-M Document 25 Filed 03/02/10 Page 2 of 3
-3-

What was said in Bass applies here as well: “The plaintif[f], like any other

litigan[t], undoubtedly would have been helped by the assistance of a lawyer, but [his]

case is not so unusual that the [Magistrate Judge] abused [his] discretion by refusing to

appoint counsel.” 170 F.3d at 1320. 

For the reasons set forth above, the Magistrate Judge’s order denying the

plaintiff’s motion to appoint counsel is affirmed. 

DONE and ORDERED this 2nd day of March, 2010.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

Case 1:09-cv-00268-WS-M Document 25 Filed 03/02/10 Page 3 of 3