Fayed v. Davis

Background

James Michael Fayed, an incarcerated plaintiff representing himself, brought an action under 42 U.S.C. § 1983. The court had previously denied two requests for appointed counsel because Fayed had not shown exceptional circumstances. The pending matter was his fourth request.

Fayed argued that his circumstances had changed significantly. He reported a recent rheumatoid-arthritis diagnosis, flare-ups that sometimes caused him to fall and hurt himself, medication side effects including weakness, fatigue, and reduced mental capacity, and the need to use a cane for short distances and a wheelchair for longer distances. He also reported physical deterioration and stiffness that made daily activities difficult. He said writing caused pain, and that he lacked access to computers, printers, word processors, typewriters, or paralegal assistance. He further stated that wheelchair-dependent law-library visits and inclement weather aggravated his condition, and that a recent transfer to another prison limited the legal papers he could keep in his cell.

Legal standard

The court stated that there is generally no constitutional right to a lawyer in a civil case unless an indigent litigant could lose physical liberty if the case is lost. Although a court may ask a lawyer to represent someone who cannot afford counsel under 28 U.S.C. § 1915(e)(1), appointment is discretionary and is permitted only in exceptional circumstances.

To determine whether exceptional circumstances exist, the court evaluates both the plaintiff’s likelihood of success on the merits and the plaintiff’s ability to explain the claims without a lawyer in light of the complexity of the legal issues. The factors must be considered together.

Ruling

The court concluded that, at this stage, it was unclear whether Fayed could succeed on the merits. It explained that its earlier determination that the operative complaint stated a legally valid claim was not the same as finding that Fayed was likely to succeed. The court therefore denied the renewed request for appointment of counsel for lack of exceptional circumstances, without prejudice to the court appointing counsel later if circumstances require it. The order terminated the pending request, identified as ECF No. 41.