United States District Court, S.D. Mississippi, Southern Division
A.L. and A.B., minors, by and through their friend, parent, and guardian James Daniel Luster PLAINTIFFS
ANTHONY HOLLIDAY, ET AL. DEFENDANTS
ORDER GRANTING MOTIONS TO DISMISS
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT are the  Motion to Dismiss for Lack of Subject
Matter Jurisdiction and Failure to State a Claim filed by
Jess Dickinson, the  Motion to Dismiss filed by John
Barnett and Glen East, and the  Motion for Summary
Judgment filed by Anthony Holliday. These three motions
address all of the plaintiffs' claims against all of the
defendants, and each motion has been fully briefed.
Additionally, Plaintiff Luster filed a  Motion to Provide
Counsel, which is unopposed.
due consideration of the submissions and the relevant law, it
is the Court's opinion that this case presents no
exceptional circumstances justifying court-appointed counsel.
Luster's Motion for appointment of counsel will therefore
be denied. However, Luster cannot represent the minor
children A.L. and A.B. The Court elects to dismiss their
claims pursuant to 42 U.S.C. §§ 1983 and 1985
without prejudice. Further, Luster's allegations do not
give rise to valid claims of statutory or constitutional
violations on his own behalf. As a result, the defendants are
entitled to dismissal of Luster's 42 U.S.C. §§
1983 and 1985 claims. Finally, the attempted 18 U.S.C.
§§ 241 and 242 claims will be dismissed with
prejudice as legally frivolous in regard to all plaintiffs.
lawsuit concerns Luster's objections to an investigation
of child abuse conducted by the Mississippi Department of
Child Protective Services (MDCPS). As part of the
investigation, Defendant Holliday interviewed Luster's
two daughters at their school, Anniston Avenue Elementary.
Luster alleges that his daughters' constitutional rights
were violated by school and MDCPS officials when Holliday
interviewed and photographed the girls, unaccompanied, in a
conference room at the school. Luster's claims are
brought pursuant to 42 U.S.C. § 1983, alleging violation
of Fourth and Fourteenth Amendment rights; 18 U.S.C.
§§ 241 and 242; and 42 U.S.C. § 1985, alleging
a conspiracy by the defendants to adopt an agreement that
violated the Fourth and Fourteenth Amendments and certain
school and MDCPS policies.
named defendants are two City of Gulfport School District
officials: Anniston Avenue Elementary principal John Barnett
and Superintendent Glen East, and two MDCPS officials:
Investigator Anthony Holliday and Commissioner Jess
Dickinson. Because Luster also makes allegations of wrongful
action by the agencies through the individual officials, the
Court construes the Complaint to allege claims against the
defendants in both their individual and official capacities.
Luster seeks injunctive relief, and compensatory and punitive
requests that the Court provide him with counsel to pursue
his claims. He argues that he is indigent, not educated in
the law, and proceeding pro se. He contends that he will be
prejudiced without counsel to assist with ensuring the
integrity of the proceedings in this case.
litigants in federal civil rights cases generally possess no
constitutional or statutory right to appointed counsel.
See Salmon v. Corpus Christi ISD, 911 F.2d 1165,
1166 (5th Cir. 1990); 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 Cty. Comm'rs
Court, 778 F.2d 250, 253 (5th Cir. 1985).
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. The Fifth Circuit Court of
Appeals has directed trial courts to consider whether the
appointment of counsel would be of service not only to the
plaintiff, but also possibly to the court and the defendant,
through sharpening of issues, the shaping of the examination
and cross-examination of witnesses, and, thus the shortening
of trial and assisting in a just determination. See
Cooper v. Sheriff, Lubbock Cty., Tex., 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. It is also appropriate for
the court to consider whether the indigent plaintiff has
demonstrated an inability to secure the assistance of private
counsel, especially in view of the opportunity for a
prevailing Section 1983 plaintiff to recover attorneys'
fees. See Cain, 864 F.2d at 1242.
Court is given considerable discretion in determining whether
to appoint counsel. Ulmer v. Chancellor, 691 F.2d
209, 211 (5th Cir. 1982). As the discussion to follow
explains, Luster's pleadings contain no novel points of
law which would indicate the presence of “exceptional
circumstances.” Luster has demonstrated through his
pleadings that he is able to communicate his position
effectively. Accordingly, the Court finds no justification
for appointment of counsel to pursue Luster's claims in
of A.L. and A.B.
Court has endeavored to construe the allegations of the
Complaint liberally and to separate Luster's claims from
those of A.L. and A.B. It appears to the Court that
Luster's allegations primarily concern purported
violations of his minor daughters' ...