Russell T. Neal v. Officer Cassiday , 511 F. App'x 865 ( 2013 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
________________________ U.S. Court of Appeals
No. 09-12601 Eleventh Circuit
________________________
March 1, 2013
D.C. Docket No. 06-00008-CV-3-RV-MD
John Ley, Clerk
RUSSELL T. NEAL,
Plaintiff-Appellant,
versus
OFFICER CASSIDAY, ET AL.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 1, 2013)
Before TJOFLAT, HULL, and KRAVITCH, Circuit Judges.
PER CURIAM:
This is a pro se civil rights case brought under 42 U.S.C. § 1983 by Russell
T. Neal, an inmate in the Florida prison system, against four correctional officers
for the infringement of the Eighth and Fourteenth Amendments right to be free
from cruel and unusual punishment. Neal alleges that the officers beat him and
cuffed his hands behind his back despite a medical pass indicating that due to torn
rotator cuffs in his shoulders, they should be cuffed in front of his body. Neal
moved the district court for the appointment of counsel on five occasions as the
case progressed toward trial. His motions were denied. At trial, the jury returned
verdicts for the defendants. Neal appeals the judgment entered pursuant to the
jury’s verdicts, arguing that the court abused its discretion in refusing to appoint
counsel.
Although there is no constitutional right to counsel in civil cases, Congress
has given district courts discretion under 28 U.S.C. § 1915(e)(1) to appoint counsel
for civil litigants proceeding in forma pauperis when exceptional circumstances
warrant such appointment. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999).
In deciding whether to grant a request for counsel from an indigent prison
inmate, a district court should answer two threshold questions. First, has the
movant looked for counsel? See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.
1982). Second, does the plaintiff’s case have merit? Poole v. Lambert, 819 F.2d
1025, 1028 (11th Cir. 1987). In determining whether “exceptional circumstances”
warrant appointment of counsel, the district court may consider various factors,
including: (1) the type and complexity of the case, (2) whether the indigent is
capable of adequately presenting his case, (3) whether the indigent is in a position
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to adequately investigate the case, and (4) whether the evidence will consist in
large part of conflicting testimony so as to require skill in the presentation of
evidence and in cross-examination. Ulmer, 691 F.2d at 213 (cited with approval in
Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990)). Because the issue is
whether counsel should have been appointed before trial, we are precluded from
hindsight reevaluation of whether appointment was necessary based on Neal’s
performance at trial. See Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982).
We conclude that Neal satisfied the threshold requirements for appointment
of counsel for his jury trial and, further, that he has shown exceptional
circumstances that warrant appointment. Although his legal claims were neither
novel nor unusually complex, his pre-existing partial blindness and his transfer to
different prisons as the case progressed toward trial significantly undermined his
ability to prepare for trial. Due to the prison system’s inter-institution
communication–prohibition rules, he was unable to find addresses for almost all
his witnesses. Locating the witnesses was critical because the case consisted
mainly of conflicting testimony about the handcuffing and beating.
We therefore vacate the district court’s judgment in favor of the defendants,
and remand the case with instructions that the district court grant Neal’s motion for
a new trial and appoint counsel to represent him at trial.
VACATED and REMANDED.
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