Benn, Jr. v. Aquiline ( 2024 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANTHONY DERAY BENN, JR., Case No. 23-cv-12479 Plaintiff, Honorable Brandy R. McMillion Magistrate Judge Elizabeth A. Stafford v. ALEXANDER AQUILINE, Defendant. ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST TO APPOINT COUNSEL (ECF NO. 26) Plaintiff Anthony Deray Benn, Jr., moves for appointment of counsel. ECF No. 26. Under 28 U.S.C. § 1915, “[t]he court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). Although a district court is vested with broad discretion in determining whether to appoint counsel for an indigent civil litigant, appointment of such counsel is not a constitutional right. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Courts seldom appoint counsel in a civil case absent a showing of “exceptional circumstances.” Id. at 606. Appointment of counsel under § 1915(e)(1) is rare because “there are no funds appropriated to pay a lawyer or to even reimburse a lawyer’s expense.” Clarke v. Blais, 473 F. Supp. 2d 124, 125 (D. Me. 2007). Thus, there must be a showing of “exceptional circumstances.” Lavado, 992 F.2d at 606. To determine whether “exceptional circumstances” exist, the Court considers the nature of the case, the party’s ability to represent himself, the complexity of the case, and whether the claims being presented are frivolous or have a small likelihood of success. Id. Because courts consider the party’s likelihood of success, “[a]ppointment of counsel is almost always denied prior to the exhaustion of dispositive motions.” Dixon v. Kraft, No. CV 16-14439, 2017 WL 11490775, at *1 (E.D. Mich. Mar. 14, 2017), objections overruled, No. 16-14439, 2017 WL 11490776 (E.D. Mich. May 5, 2017). Benn offers no argument showing exceptional circumstances. The claims he advances are straightforward and all arise from an alleged sexual assault during a traffic stop. And Benn’s likelihood of success is unclear, given that defendant moves to dismiss the case for failure to state a viable claim. For these reasons, Benn’s request to appoint counsel is DENIED WITHOUT PREJUDICE. s/Elizabeth A. Stafford ELIZABETH A. STAFFORD Dated: May 28, 2024 United States Magistrate Judge NOTICE TO PARTIES ABOUT OBJECTIONS Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed. R. Civ. P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge’s ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2. CERTIFICATE OF SERVICE The undersigned certifies that this document was served on counsel of record and any unrepresented parties via the Court’s ECF System to their email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 28, 2024. s/Marlena Williams MARLENA WILLIAMS Case Manager