Mullings v. Burnett

Background

Andrew Mullings applied for the court to seek volunteer legal counsel in this civil action. The court had previously granted his request to proceed without paying filing fees, so the court found that he qualified as unable to afford counsel.

In a July 24, 2024 bench ruling, the court dismissed several claims but denied the defendants’ motion to dismiss as to these claims:

- an Eighth Amendment excessive-force claim against LeClair, based on the allegation that LeClair repeatedly and painfully squeezed Mullings’s fingers while Mullings was required to keep his fingers interlaced on his head; - an Eighth Amendment conditions-of-confinement claim against Thompson and LeClair, based on the allegation that Mullings was required to stand in his boxers for about two and a half hours in a freezing room with open windows during a facility search; and - a related Eighth Amendment failure-to-protect claim against Burnett, Daye, Churns, Noeth, and Miller.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request—rather than require or formally appoint—a volunteer lawyer for a person who cannot afford counsel. In civil cases, litigants generally do not have an automatic right to appointed counsel. The court must consider whether the claims appear sufficiently substantial and, if so, factors such as the person’s ability to investigate important facts, the likely need for cross-examination, the complexity of the legal issues, and whether counsel would likely lead to a fairer result.

Court’s reasoning

The court concluded that Mullings’s remaining allegations met the requirement that his claims appear substantial enough to justify considering volunteer representation. The court also found that investigating the claims would require contacting other prisoners who experienced the same treatment and might require locating experts to testify about damages. The court determined that counsel would help clarify the issues and conduct the examination of witnesses.

Ruling and scope of representation

The court granted Mullings’s application for the court to request counsel. It directed the Clerk of Court to seek volunteer counsel for a limited appearance focused initially on discovery, including possible expert discovery. Counsel may choose to remain for settlement discussions, motion practice, and trial.

The volunteer lawyer is not required to handle matters outside the order’s scope, including responding to a dispositive motion. If a defendant files such a motion, counsel may ask for additional time or request that the court expand the representation. Unless the court expands the representation, counsel’s role will end after discovery. The opinion also states that Mullings must continue litigating the case himself while the court seeks a volunteer and that there is no guarantee a lawyer will accept the case.