United States District Court, W.D. Louisiana, Monroe Division
L. HAYES, MAG. JUDGE
A. DOUGHTY, UNITED STATES DISTRICT JUDGE
Jerrell Marshall is confined at Caldwell Correctional Center
and brought this civil rights action, pro se, on
April 26, 2018, pursuant to 42 U.S.C. § 1983. He names
as Defendants “Dept. of Corrections, ” James M.
LeBlanc, Jerry Goodwin, and Kevin Wyles.
30, 2018, Magistrate Judge Karen L. Hayes issued a Report and
Recommendation [Doc. No. 8] recommending that the Court
dismiss Plaintiff's Complaint for failure to state a
claim upon which relief can be granted. Specifically, she
found that Plaintiff improperly brought a civil rights action
when he challenges the fact and duration of his imprisonment.
She advised Plaintiff that such relief could only be obtained
through a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 and that Plaintiff should not file a habeas
petition until he has exhausted his available state court
6, 2018, the Clerk of Court received another filing from
Plaintiff, which were construed as objections [Doc. No. 10]
to the Report and Recommendation.
same day, Magistrate Judge Hayes issued a Supplemental Report
and Recommendation [Doc. No. 11] in which she addressed
Plaintiff's Motion to Appear in Open Court [Doc. No. 9]
because it had been placed in the prison mailing system
before her original Report and Recommendation issued, but had
not been docketed by the Clerk's Office at the time the
Report and Recommendation was filed. Magistrate Judge Hayes
found that Plaintiff repeated his allegations and requests
for relief, but failed to cure the deficiencies in his
Complaint. Therefore she recommended that the motion be
denied and dismissed as superfluous and moot.
12, 2018, the Clerk of Court received multiple filings from
Plaintiff. He moves to amend his complaint [Doc. No. 12], for
appointment of counsel [Doc. No. 13], for “Declaration
and Request Local Rules 28 U.S.C. § 1915(h) also an
Element, ” [Doc. No. 14], and to issue summonses [Doc.
13, 2018, the Clerk of Court received additional objections
[Doc. No. 16] to the Report and Recommendation, as well as a
“Motion for: Written Objections and Appeals Dismissed
Civil Rights Complaint by a Prisoner Pursuant to 28 U.S.C.
§ 1915 under 42 U.S.C. § 1983 and Motion for
Complaint and Summons” [Doc. No. 17].
Court issues this Ruling to address the pending motions, as
well as the pending Report and Recommendation and
Supplemental Report and Recommendation.
with regard to his motion to amend his Complaint [Doc. No.
12], Plaintiff seeks leave of Court to add as a Defendant a
state court judge. Pursuant to Federal Rule of Civil
Procedure 15(a), the Court shall “freely give leave to
amend when justice so requires.” However, in this case,
amendment would be futile because Plaintiff seeks relief not
available under § 1983 and, additionally, because he
seeks to add a defendant who is entitled to immunity as a
judicial officer. Therefore, Plaintiff's motion to amend
Complaint is DENIED.
with regard to his motion to appoint counsel [Doc. No. 13],
Plaintiff contends that an attorney should be appointed to
represent him because of his lack of education and knowledge
of the law. 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
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 United States
Court of Appeals for 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. Plaintiff has failed to make this showing, and, further,
he does not actually allege any rights actionable under
§ 1983. Therefore, his motion for appointment of counsel
Plaintiff's Motion for Declaration [Doc. No. 14] is yet
another attempt to amend his Complaint and to add claims
against a state court judge. For ...