Walker v. Department of Correction

Background

Kevin Walker, an incarcerated plaintiff proceeding without a lawyer, applied for appointment of pro bono counsel, meaning a volunteer attorney. Walker had previously been allowed to proceed in the case without paying filing fees. The court presumed that he remained unable to afford counsel because he continued to be incarcerated.

Claims described by the court

The complaint did not identify a specific statute supporting Walker’s claims. The court said, however, that its factual allegations suggested a possible claim under 42 U.S.C. § 1983, a law that permits claims against people acting under state authority for violating constitutional rights. Walker alleged that employees of the Department of Correction, sued in their official capacity, assaulted him while he was in their custody and caused bodily injury. He also alleged that defendants confiscated his mail and other evidence that could help establish his innocence.

The court explained that incarcerated people are protected by the Eighth Amendment from excessive force. But the complaint did not describe the circumstances of the alleged force in enough detail for the court to decide whether the claim was likely to have substantial merit. The court also explained that incarcerated people have First Amendment protection for the flow of incoming and outgoing mail, including legal mail. Walker alleged interference with his mail, but the complaint did not provide enough facts to determine whether the interference was regular and unjustified.

Legal standard

Civil litigants do not have an automatic right to a free lawyer. Under 28 U.S.C. § 1915(e)(1), a court may request that an attorney volunteer to represent a person who cannot afford counsel. The court cannot require an attorney to accept the appointment or provide payment in an ordinary civil case.

Before considering additional factors, the court must determine whether the litigant is unable to afford counsel and whether the claim appears likely to have substantial merit. If those requirements are met, the court may also consider whether the facts require investigation, whether credibility disputes would benefit from an attorney’s skills, whether the party can present the case, and whether the legal issues are complex.

Ruling

The court found that Walker qualified as unable to afford counsel. It nevertheless concluded that the complaint did not contain enough facts to determine whether his excessive-force and mail-interference claims were likely to have substantial merit. The court therefore denied Walker’s application for appointment of pro bono counsel without prejudice to renewal at a later date after any dispositive motions and before trial.

The court certified that an appeal from the order would not be taken in good faith and denied Walker permission to proceed without paying fees for an appeal. It directed the Clerk of Court to mail Walker a copy of the order and close the motion at Docket 12.