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A.L. v. Holliday

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

September 25, 2018

A.L. and A.B., minors, by and through their friend, parent, and guardian James Daniel Luster PLAINTIFFS



         BEFORE THE COURT are the [22] Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim filed by Jess Dickinson, the [24] Motion to Dismiss filed by John Barnett and Glen East, and the [34] 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 [31] Motion to Provide Counsel, which is unopposed.

         After 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.


         This 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.

         The 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 damages.


         Appointment of Counsel

         Luster 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.

         Indigent 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).

         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. 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.

         The 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 this case.

         Representation of A.L. and A.B.

         The 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' ...

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