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Fussell v. Vannoy

United States District Court, Middle District of Louisiana

December 15, 2014




This matter comes before the Court on Plaintiff's Motion for Appointment of Counsel (Doc. 3). The pro se plaintiff Jeffery Jerome Fussell, who is confined at the Louisiana State Penitentiary ("LSP"), Angola, Louisiana, filed the instant action on August 25, 2013. The Complaint alleged claims pursuant 42 U.S.C. § 1983 against LSP Deputy Warden Darrell Vannoy. Specifically, Plaintiff asserted violations of his rights under the Eighth and Fourteenth Amendments in connection with his placement and long-term retention in Administrative Segregation Extended Lockdown ("extended lockdown"), a form of solitary confinement.[1]

On August 30, 2013, the Court denied Plaintiffs instant Motion for Appointment of Counsel. (Doc. 5). On December 13, 2013, the Court issued an order dismissing Plaintiffs action as frivolous. (Doc. 9). Plaintiff appealed this Court's judgment of dismissal. (Docs. 10, 11).

On November 25, 2014, the Court of Appeals for the Fifth Circuit ruled on Plaintiffs appeal. As an initial matter, the Court of Appeals granted Plaintiffs motion to proceed in forma pauperis. The Court of Appeals then reversed the dismissal of Plaintiffs Eighth Amendment claim, while affirming dismissal of the remainder of Plaintiffs claims. See Fussell v. Vannoy, No. 13-31294, 2014 WL 6661143, at *2 (5th Cir. Nov. 25, 2014). On remand, this Court has been directed to first consider whether, in light of the appeals court's decision, appointment of counsel for Plaintiff would be appropriate under 28 U.S.C. § 1915(e)(1) and Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982). For reasons explained below, Plaintiffs Motion is GRANTED.


Plaintiff alleges that, in 1989, he was placed in extended lockdown. According to the Complaint, Plaintiff was told he would remain in extended lockdown until he disclosed to prison authorities the identity of the guard from whom Plaintiff obtained the knife he used in the stabbing of another LSP inmate on April 28, 1989. Plaintiff alleges that he is still in extended lockdown, now twenty-five years later. Plaintiff claims, inter alia, that his long-term confinement in extended lockdown has caused severe mental health issues.

On August 25, 2013, Plaintiff filed the instant Motion for Appointment of Counsel. Plaintiff alleges that appointment of counsel is appropriate due to, among other reasons, Plaintiffs limited educational attainment, history of mental illness, and limited access to legal resources. (Doc. 3 at ¶¶ 1-3). Beyond that, Plaintiff highlights this case's "complexed [sic] medical issues concerning the physical, mental and social welfare and health effects that decades of long term isolation in extended lockdown has on the human body and mind, that will require expert testimony." (Id. at ¶ 4).


A federal court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). The U.S. Supreme Court has held that under § 1915, the court may "request" that an attorney represent an indigent plaintiff, but the statute does not authorize compulsory appointments of counsel. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309-10 (1989).

Further, a federal court is not required to seek counsel for an in forma pauperis plaintiff asserting a civil rights claim under § 1983 "unless the case presents exceptional circumstances." Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). First, a court may ascertain what effort, if any, the plaintiff made to secure private counsel. See Id. at 213; Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989). Then a court must examine case-specific factors in determining whether exceptional circumstances justify the court to grant a request for counsel, including but not limited to:

(1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is in a position to investigate adequately the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination.

Ulmer, 691 F.2d at 212 (citations omitted). A court should also consider whether counsel would aid the plaintiff, as well as the court and the defendant, by "sharpening the issues in the case, shaping the examination of witnesses, and thus shortening the trial and assisting in a just determination." Id.


Plaintiff is indigent, and the Court accepts Plaintiffs representation that he "has failed to locate an attorney who would be willing to accept this case and represent [him] on a pro-bono basis" as evidence of Plaintiffs own efforts to secure private counsel. (Doc. 3 at ΒΆ 8). Accordingly, the Court moves next to ...

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