United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: MOTION FOR APPOINTMENT OF
COUNSEL (DOCKET ENTRY # 48); EX PARTE MOTIONS FOR FUNDS TO
HIRE INVESTIGATOR (DOCKET ENTRY ## 30, 33, 38); EX PARTE
MOTION FOR FUNDS TO HIRE DATA RETRIEVAL TECHNICIAN (DOCKET
ENTRY # 39)
MARIANNE B. BOWLER, United States Magistrate Judge
Jason Lattimore ("plaintiff"), a former inmate at
the Suffolk County House of Corrections ("SCHC"),
filed this civil rights action seeking damages for violations
of his constitutional rights under 42 U.S.C. § 1983
("section 1983"), Massachusetts statutes and
Massachusetts common law based on an incident that took place
at SCHC in 2014. In February 2015, this court allowed
plaintiff's motion to proceed in forma pauperis under 28
U.S.C. § 1915. (Docket Entry # 4). Pending before this
court are the above motions for appointment of counsel
(Docket Entry # 48) and for funds to hire an investigator
(Docket Entry ## 30, 33, 38) and a data retrieval technician
(Docket Entry # 39) filed by plaintiff. Although plaintiff
filed the latter motions ex parte under 18 U.S.C. §
3006A, this is not a criminal prosecution and there is no
need to file the motions ex parte.
to the request to appoint counsel, "Indigent civil
litigants, " such as plaintiff "possess neither a
constitutional nor a statutory right to appointed
counsel." Montgomery v. Pinchak, 294 F.3d 492,
498 (3rd Cir. 2002) (recognizing that 28 U.S.C.
§ 1915(e)(1) gives the court statutory authority to
request appointed counsel); accord DesRosiers v.
Moran, 949 F.2d 15, 23 (1st Cir. 1991)
("[t]here is no absolute constitutional right to a free
lawyer in a civil case"). That said, 28 U.S.C. §
1915(e)(1) gives a court the discretion to request appointed
counsel for "any person unable to afford counsel."
28 U.S.C. § 1915(e)(1); see Weir v. Potter, 214
F.Supp.2d 53, 54 (D.Mass. 2002) (citing 28 U.S.C. §
1915(e)(1) and noting that appointment is discretionary).
order to obtain appointed counsel, there must be a showing of
both indigency and exceptional circumstances. DesRosiers
v. Moran, 949 F.2d at 23; accord Cookish v.
Cunningham, 787 F.2d 1, 2 (1st Cir. 1986)
("an indigent litigant must demonstrate exceptional
circumstances in his or her case to justify the appointment
of counsel"); Weir v. Potter, 214 F.Supp.2d at
54. To determine whether exceptional circumstances exist, a
court "examine[s] the total situation, focusing, inter
alia, on the merits of the case, the complexity of the legal
issues, and the litigant's ability to represent
himself." DesRosiers v. Moran, 949 F.2d at 24;
see Weir v. Potter, 214 F.Supp.2d at 54 (in
assessing whether exceptional circumstances exist to warrant
appointment, courts consider "merits of the case, the
litigant's capability of conducting a factual inquiry,
the complexity of the legal and factual issues, and the
ability of the litigant to represent [him]self").
case at bar, the factual issues are not complex. Rather, they
involve an incident that took place on May 29, 2014 and
thereafter led to confiscation and destruction of legal
material in plaintiff's cell. The amended complaint
(Docket Entry # 37), with the addition of two defendants
(Sheriff Thompkins and Lt. Barrows) in accordance with this
court's June 13, 2016 Order, evidences that plaintiff is
capable of representing himself. Plaintiff may reapply for
appointment in the event the case proceeds to a more complex
stage involving nonfrivolous claims. In light of the absence
of exceptional circumstances, appointment of counsel is not
addition to appointment of counsel, plaintiff seeks funds to
hire an investigator and a data retrieval technician pursuant
to the Criminal Justice Act, ("CJA"), 18 U.S.C.
§ 3006A(e). The statute, however, applies to certain
criminal defendants and petitioners "seeking relief
under section[s] 2241, 2254, or 2255." 18 U.S.C. §
3006A(a); Gomez v. Myers, 627 F.Supp. 183, 186
(E.D.Tex. 1985) (denying funds because CJA "permits
counsel for indigent defendants to request experts or other
services necessary for an adequate defense, 18 U.S.C. §
3006A(e), but Gomez is not defending against a federal
criminal charge"). Plaintiff is not seeking habeas
relief or defending against a criminal prosecution. Although
plaintiff is proceeding in forma pauperis under 28 U.S.C.
§ 1915, this statute "authorizes the court to
direct payment only for the expenses of preparing a
transcript, printing a record on appeal, or serving
process." Id. (omitting citations). "[I]n
forma pauperis Plaintiffs, including pro se inmates, are
responsible for their litigation fees in civil actions."
Collins v. Bledsoe, 2014 WL 6982938, at *3 (M.D.Pa.
Dec. 9, 2014) (quoting Hodge v. U.S., 2009 WL
2843332, *4-5 (M.D.Pa. Aug. 31, 2009)); accord Woodward
v. Mullah, 2010 WL 3023117, 4 (W.D.N.Y. July 29, 2010).
"‘There is no constitutional or statutory
requirement that the government or Defendant pay for an
indigent prisoner's discovery efforts.'"
Brown v. Ross County, 2014 WL 4284874, at *2
(S.D.Ohio Aug. 28, 2014).
accordance with the foregoing discussion, the motion for
appointment of counsel (Docket Entry # 48) is DENIED without
prejudice and the motions for funds to hire an investigator
(Docket Entry ## 30, 33, 38) ...