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Andrew v. Management & Training Corporation

United States District Court, S.D. Mississippi, Northern Division

June 2, 2015



F. KEITH BALL, Magistrate Judge.

This cause is before the Court on Plaintiff's Motion to Compel [33], Motion to Appoint Counsel [49], and Motion for Settlement [50], as well as Defendants' Motion for Summary Judgment [46]. Having considered the entire record in this matter, the Court concludes that Plaintiff's motions are not well-taken and are denied. Defendants' motion is well-taken and is hereby granted.


Plaintiff is a state inmate who was formerly housed at East Mississippi Correctional Facility (EMCF) in Meridian, Mississippi. On December 18, 2014, the Court held an omnibus hearing during which the Court questioned Plaintiff concerning his claims and addressed other case management issues. At the hearing, all parties consented to the undersigned hearing this case in its entirety.

Plaintiff's claims, as clarified at the omnibus hearing, are as follows. Plaintiff alleges that he was assaulted by Defendant Lieutenant Mason, a guard at EMCF, while being transferred from one cell to another. He claims that Defendant Mason choked him, put his knee in Plaintiff's back, slammed him to the floor, bruised his face and throat, scratched his face, and broke his pinky finger. Plaintiff claims that he was then denied medical treatment. Plaintiff alleges that he can no longer straighten his pinky finger.

At the omnibus hearing, the undersigned explained to Plaintiff that neither Defendant Mason nor Defendant Dr. Faulks had been served with process and that it was Plaintiff's responsibility to ensure that they were served. [46-1] at 13-15. In an effort to aid Plaintiff, the Court instructed defense counsel to provide the last known addresses of these two Defendants to the Court under seal. [36]. Defense counsel complied with the Court's Order and process was reissued, though the United States Marshal could not locate either Defendant at the addresses provided. [43].

Over a year and a half has passed since the filing of this lawsuit. Yet, neither Defendant has been served despite the Court's warning to Plaintiff of his duty to serve these Defendants. Accordingly, the Court hereby dismisses the claims against Defendant Mason and Defendant Faulks without prejudice for Plaintiff's failure to prosecute. Fed.R.Civ.P. 4(m). The remaining Defendants are Management & Training Corporation ("MTC") and Jerry Buscher.


Plaintiff moved to compel Defendants to provide a copy of the videotape of the alleged altercation with Defendant Mason, copies of Plaintiff's medical records, and copies of all "ARPs"[1] regarding Defendant Mason. [33]. Defendants responded to the motion and indicated that they had no video. [39]. Defendants produced Plaintiff's medical records, but objected to Plaintiff's request for copies of all ARPs concerning Defendant Mason. [39]. Given the Court's conclusion, discussed infra, that Plaintiff failed to exhaust administrative remedies with respect to his excessive force claim, Plaintiff's motion to compel is denied.

Plaintiff's motion for counsel [49] is also denied. There is no right to the automatic appointment of counsel in a civil case under 28 U.S.C. ยง 1915. Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982); Salmon v. Corpus Christi ISD, 911 F.2d 1165, 1166 (5th Cir. 1990). Section 1915(e)(1) authorizes federal courts only to request that a particular attorney undertake the representation of a litigant proceeding in forma pauperis; it does not authorize the Court to make coercive appointments of counsel. See Mallard v. U.S. Dist. Ct. for the Southern Dist. of Iowa, 490 U.S. 296, 310, 109 S.Ct. 1814, 1823, 104 L.Ed.2d 318 (1989). Indigent litigants in federal civil rights cases generally possess no constitutional or statutory right to appointed counsel. See Salmon, 911 F.2d at 1166; Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). A trial court is not required to appoint counsel for an indigent party in a civil rights lawsuit unless the case presents truly exceptional circumstances. See Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988); Good v. Allain, 823 F.2d 64, 66 (5th Cir. 1987); Feist v. Jefferson Cnty.Comm'r Court, 778 F.2d 250, 253 (5th Cir. 1985); and Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

Although no comprehensive definition of "exceptional circumstances" is practical, the existence of such circumstances will necessarily turn on two basic considerations: (1) the type and complexity of the case and (2) the abilities of the individual bringing it. See Freeze, 849 F.2d at 175; Good, 823 F.2d at 66; Feist, 778 F.2d at 253; and Ulmer, 691 F.2d at 212. The United States Court of Appeals for the Fifth Circuit has directed trial courts to consider whether the appointment of counsel would be of service not only to Plaintiff, but also possibly to the court and Defendants, through sharpening of issues, the shaping of the examination and crossexamination of witnesses, and, thus the shortening of trial and assisting in a just determination. See Cooper v. Sheriff, Lubbock Cnty., Texas, 929 F.2d 1078, 1084 (5th Cir.1991); Jackson v. Dallas Police Dep't, 811 F.2d 260, 262 (5th Cir. 1986); Feist, 778 F.2d at 253; and Ulmer, 691 F.2d at 213.

This Court is given considerable discretion in determining whether to appoint counsel. Ulmer, 691 F.2d at 211. The Court does not find Plaintiff's case to be particularly complex, and his filings have demonstrated that he can effectively communicate with the Court. The Court does not find the presence of "exceptional circumstances." Accordingly, Plaintiff's motion is denied.

Plaintiff also filed a "Motion to Settle" [50], which includes his settlement demand. This ...

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