Whitted v. P.O. E. Marsh

Background

Richard O’Neal Whitted, who is incarcerated and proceeding without a lawyer, brought this action under 42 U.S.C. § 1983. He alleges that Police Officers E. Marsh, Stetcher, M. Ragni, and B. Sukeema used excessive force in violation of the Fourth Amendment while arresting him. Whitted claims that the incident caused a fracture to his right elbow, forehead contusions, and abrasions and scars on his knees and elbows. He seeks compensatory and punitive damages in an unspecified amount.

On August 28, 2025, Whitted asked the court to appoint free counsel. He said he needed a lawyer because of his limited legal knowledge and intermittent access to the law library. He also said he had contacted many law firms but had received no responses.

Legal Standard

The court explained that civil litigants do not have a constitutional right to appointed counsel, but federal law allows a court to appoint counsel for an eligible person who cannot afford a lawyer. Under the applicable two-step test, the court first considers whether the claim appears to have some likelihood of merit. If that threshold is met, the court considers additional factors, including the person’s ability to investigate facts and present the case, the complexity of the legal issues, the likely need for cross-examination, and whether counsel would be more likely to produce a fair result. The court also stated that a person requesting appointed counsel must show an inability to obtain counsel before appointment will be considered.

Court’s Analysis

The court assumed, solely for purposes of deciding the counsel request, that Whitted’s claim had “some likelihood of merit.” It therefore found that he satisfied the initial threshold.

The court nevertheless found that Whitted had not shown a sufficient need for appointed counsel. His properly filed submissions presented relevant facts adequately and competently. The court stated that a lack of legal knowledge, without more, was not enough to justify appointment. It also found that his claims were based largely on events he personally experienced and did not appear to require outside investigation. The possible need to cross-examine witnesses, by itself, was not sufficient.

The court acknowledged that Whitted had tried to obtain legal assistance and that people proceeding without lawyers receive less demanding treatment of their filings. But it concluded that he had not provided enough information to show that appointing counsel would be more likely to produce a fair determination.

Disposition

The court denied Whitted’s request for assignment of counsel without prejudice. The opinion states that he may renew the request and provide additional information about his circumstances. The Clerk was directed to terminate the pending motion and mail a copy of the order to Whitted.