AuthorFitzGerald, John R.


Prisoners in the United States can sue their jailers. (1) Prisoners have a right to sue wardens, guards, medical staff, and any other governmental entity they encounter while incarcerated. (2) Prisoner suits are referred to as "prisoner civil rights case[s]," and they comprise a significant portion of the federal docket. (3) The American prison population is notoriously high. (4) Given the high prison population, and that a single inmate may file dozens of lawsuits,(5) courts struggle to keep up with overburdened dockets. (6) Few prisoners can afford representation, (7) but, under 28 U.S.C. [section] 1915(e)(1), district judges "may request an attorney to represent any person unable to afford counsel." (8)

The circuit courts are split as to what factors district courts may consider whendeciding whether to appoint counsel under [section] 1915(e)(1). (9) Most circuits permit courts to evaluate, among other things, the merit of a prisoner's claim.(10) In these circuits, district judges may not provide counsel to prisoners who file meritless claims. Other circuits exclude merit as a factor for district judges. (11) Instead, these circuits only allow district judges to consider more general factors, such as the complexity of the case, the competence of the plaintiff, or whether the case constitutes an exceptional circumstance. (12)

Prohibiting district courts from considering merit when deciding whether to appoint counsel in prisoner suits is problematic. This prohibition unduly limits discretion and leads district courts to provide counsel in cases where the plaintiff has virtually no chance of winning or the cost of litigation heavily outweighs the remedy sought. This Note considers why some circuits withhold merit as a factor, and whether circuits should continue to do so. This Note argues that all district judges should consider merit when deciding whether to appoint counsel under [section] 1915(e)(1). Furthermore, this Note arguesthat district courts should consider what is at stake in the litigation-referred to herein as the "substance." The substance describes what the plaintiff is seeking as a remedy, such as money damages for past pain and suffering, money damages for a permanent injury, or injunctive relief. Merit andsubstance should be considered because Congress intended to grant district courtswide discretion with [section] 1915(e)(1), and without allowing consideration of merit and substance, prisoners are gratuitously provided counsel. The gratuitous provision of counsel unduly burdens courts, lawyers, and defendants, and results in an inefficient distribution of pro bono legal work.

This Note evaluates the circuit split regarding the provision of counsel in prisoner civil rights cases and proposes a uniform test. Part I describes the historical background of the right to counsel and prisoner litigation in the United States. Part II outlines the current circuit split regarding [section] 1915(e)(1). Part III explains why all district courts should consider merit and substance, using a case study to illustrate the deficiencies of non-merit-based tests.Part IV demonstrates why merit and substance are the best metrics for deciding when to provide counsel. Ultimately, this Note asserts that all district judges should consider: (1) the merit of the claim; (2) what is at stake in the litigation; (3) whether the plaintiff has made a reasonable attempt to secure counsel on his own; and (4) whether the plaintiff appears competent to litigate the matter himself given the difficulty of the case.


    Before discussing how judges should exercise discretion when providing counsel to indigent prisoners, this Note addresses where judges derive such power,and when counsel is a matter of judicial discretion versus a constitutional right.Additionally, this Note discusses the volume of prisoner litigation to illuminate the force of the competing interests at play in construing [section] 1915(e)(1) tests.

    1. Right to Counsel

      Indigent criminal defendants have a constitutional right to effective counsel. (13) This right is guaranteed by the Sixth Amendment; it is grounded in the notion that an accused must have counsel before the state may deprive him of his liberty. (14) There is no constitutional right to counsel in civil cases. (15)

      Whereasthe Court adopted a per se approach to representation in criminal proceedings, the Court relies on a case-by-case approach for provision of counsel in civil proceedings. In a series of cases in the mid-twentieth century, the Supreme Court sought to mitigate obstacles for indigent litigants in the criminaljustice system. (16) For instance, to ensure that indigent litigants possessed the materials necessary to pursue an appeal, the Court required local governments to provide a record when necessary. (17) The Court made similar decisions in the civil context, making it easier for prisoners to pursue civil cases. (18) For instance, in Johnson v. Avery the Court struck down a ban on inmates assisting one another in legal matters. (19) The impact of such cases, however, was mitigated by another series of cases that came to treat indigent and nonindigent litigants alike in civil proceedings. (20) For example, in Lassiter v. Department of Social Services (21) the Supreme Court ruled that a failure to appoint counsel for indigent parents in a termination of parental status proceeding did not violate the Due Process Clause. (22)

      Thisprecedent notwithstanding, the Court did hold that a right to counsel should extend to certain civil proceedings. (23) Relying on the Due Process Clause,the Court held that a right to counsel may apply in juvenile proceedings, parole revocations, and terminations of parental rights. (24) Unlike the categoricalrequirement of counsel for indigent defendants in criminal proceedings, the Court's case-by-case approach in civil proceedings (25) allows courts to consider several factors in determining whether to appoint counsel in a given case. (26) For instance, courts may consider whether the State is a party, or whether substitute procedural safeguards will protect the indigent litigant's interests. (27)

      Civil litigants seeking to attain counsel in a civil matter may attempt to do so under 28 U.S.C. [section] 1915(e)(1) by moving for appointment of counsel. (28) Judges then follow the case-by-case approach to decide whether provision of counsel is appropriate. If rejected, litigants may appeal (29) on the grounds that the district court abused its discretion. (30) Even though this statute has been in place since 1892, (31) it has been the subject of very little litigation. (32) Whatlitigation has transpired primarily concerns whether an appointed lawyer must accept a case, (33) and what factors district judges may consider when deciding whether to appoint counsel. (34)

    2. Prison Litigation

      Many civil litigants moving for counsel are prisoners suing governmental entities.(35) Prisoners frequently sue prison guards, medical staff, wardens, disciplinary boards,and other governmental entities, arguing that the conditions of their incarceration violate their constitutional rights. (36) Common allegationsinclude violations of the right to due process, privacy, equal protection, and freedom from cruel and unusual punishment. (37) Prisoner civil rights cases make up a significant percentage of the federal docket. (38) Between 1970 and 1990 the prison population in America nearly quadrupled. (39) Not surprisingly, the prisoner civil rights filings simultaneously rose: from 2267 in 1970 to 39,008 in 1995. (40) "Because almost all of these prisoner plaintiffs are indigent," they regularly move for counsel. (41)

      In 1996, Congress enacted the Prison Litigation Reform Act (PLRA) to address the volume of prisoner litigation. (42) "The PLRA did not change much of the substantive law underlying inmate litigation"; rather, it "rewrote both the law of procedure and the law of remedies in individual inmate cases in federal court." (43) The PLRA requires prisoners to pay filing fees, pay court costs,and exhaust all grievance procedures before filing a claim. (44) Moreover, it requires judges to screen prisoner civil rights cases before allowing them to proceed, (45) and allows judges to hold telephonic hearings. (46) For the defendant, the PLRA relinquishes the obligation to respond (47) and limits the potential damages. (48) The PLRA has somewhat mitigated prisoner civil rights filings, (49) but federal dockets are still overwhelmed by prisoner litigation. (50) ThePLRA addresses the volume of prisoner civil rights cases by creating barriers to filing a claim; however, once a claim survives the filing requirements, the PLRA has no impact on whether counsel is provided under [section] 1915(e)(1).


    With [section] 1915(e)(1), Congress granted judges substantial power to appoint counsel with little guidance regarding when and for what reasons theyshould do so. Over time, the courts of appeals have established parameters for district judges to follow when deciding whether to recruit counsel. The courts of appeals have divided on when an order denying appointment of counsel constitutes an abuse of discretion. (51) Most circuits allow district judges to consider merit before appointing counsel, (52) but some circuits do not. (53)

    1. The Competing Tests

      The majority rule, followed by the First, Second, Third, Sixth, Ninth, Tenth, and D.C. Circuits, allows district judges to consider the merit of the casebefore appointing counsel. (54) A district court does not abuse its discretion by denying a motion for counsel on the basis that the claim lacks merit. (55) "Were it otherwise, the appointment in most instances would work a hardship on counsel with no concomitant benefit to the party requesting it." (56) Although circuits allowing consideration of merit apply different tests, this Note will...

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