United States District Court, W.D. Louisiana, Monroe Division
JAPHUS L. BRIGGS
JEFFREY NORRED, ET AL.
L. HAYES MAG. JUDGE
G. JAMES, UNITED STATES DISTRICT JUDGE
a civil rights lawsuit brought by Plaintiff Japhus L. Briggs
pursuant to 42 U.S.C. § 1983. On November 14, 2017,
after having conducted an initial review, Magistrate Judge
Karen L. Hayes issued a Report and Recommendation [Doc. No.
10] in which she recommended that the Court dismiss
Plaintiff's Complaint as frivolous and for failing to
state a claim.
of filing objections to Magistrate Judge Hayes' Report
and Recommendation, Plaintiff then filed a motion to amend
his civil rights Complaint [Doc. No. 11] to assert a claim of
miscarriage of justice and to add a defendant who is the
department records supervisor.
Plaintiff had previously filed a motion to appoint counsel
[Doc. No. 2] which was not addressed in Magistrate Judge
Hayes' Report and Recommendation.
Court will first address the motion to appoint counsel. In a
§ 1983 case, Congress has not specifically authorized
courts to appoint counsel for a plaintiff. “Generally
no right to counsel exists in § 1983 actions [but]
appointment of counsel should be made as authorized by 28
U.S.C. § 1915 where ‘exceptional
circumstances' are present.” Robbins v.
Maggio, 750 F.2d 405 (5th Cir. 1985). Pursuant to 28
U.S.C. § 1915(e)(1), federal courts are given the power
to request that an attorney represent an indigent plaintiff.
The United States Supreme Court in the case of Mallard v.
United States District Court for the Southern District,
109 S.Ct. 1814 (1989), held that federal courts can only
request that an attorney represent a person unable to employ
counsel because federal courts are not authorized under 28
U.S.C. §1915(e)(1) to make compulsory appointments.
courts can request that an attorney represent an indigent
plaintiff, the court is not required to make this request in
the absence of “exceptional circumstances.”
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982); Jackson v. Cain, 864 F.2d 1235, 1242 (5th
Cir. 1989); Robbins v. Maggio, 750 F.2d 405 (5th
Cir. 1985) (“Generally no right to counsel exists in
§1983 actions [but] appointment of counsel should be
made as authorized by 28 U.S.C. §1915 where
‘exceptional circumstances' are present.”).
No precise definition of “exceptional
circumstances” is available, but the Fifth Circuit has
provided a litany of factors for lower courts to consider in
making this determination. For example, the district court
should consider (1) the type and complexity of the case; (2)
the plaintiff's ability to adequately present and
investigate his case; (3) the presence of evidence which
largely consists of conflicting testimony so as to require
skill in presentation of evidence and cross-examination; and
(4) the likelihood that appointment will benefit the
petitioner, the court, and the defendants by
“shortening the trial and assisting in just
determination.” See Parker v. Carpenter, 978
F.2d 190 (5th Cir. 1992) (citations omitted). Additionally, a
court may consider whether a plaintiff has demonstrated the
inability to secure private counsel on his own behalf because
plaintiffs are not excused from making efforts to procure
counsel on their own. See Jackson, 864 F.2d at 1242;
Ulmer, 691 F.2d at 213.
initiated this action to vindicate his civil rights and
possesses first hand knowledge of the facts which form the
basis of this action. Although he contends, without
supporting evidence, that he has mental disorders that would
support the appointment of counsel, he was able to file a
Complaint and recount the facts to the Court prior to
issuance of the Report and Recommendation. He was also able
to file a motion to amend the Complaint. Further, Plaintiff
details no efforts to attempt to secure an attorney. Finally,
given the fact that his allegations clearly raise
Heck concerns, the Court finds it doubtful that
appointment of counsel would benefit Plaintiff, the Court, or
Defendants. Accordingly, Plaintiffs motion to appoint counsel
[Doc. No. 2] is DENIED.
having reviewed the record in this matter, the Court finds
that Magistrate Judge Karen L. Hayes correctly stated and
applied the law, and the Court thus ADOPTS her Report and
to dismissal, however, the Court has considered under Federal
Rule of Civil Procedure 15 whether Plaintiff should be
permitted to amend his Complaint. The Court finds that he
should not. Plaintiffs proposed amendment would be futile
because an allegation of a “miscarriage of
justice” does not state a cause of action under §
1983 under the facts either. Likewise, for the same reasons
that his claims against the current Defendants fail, his
claims against the departments records supervisor would fail
as well. Accordingly, the motion is DENIED, and the Court
will issue a separate Judgment dismissing Plaintiffs