Summers v. United States Federal Bureau of Prisons (BOP)
691 F. App'x 222
| 5th Cir. | 2017Background
- Plaintiff Todd Wayne Summers, a federal prisoner, moved for appointment of counsel to pursue a Federal Tort Claims Act medical-malpractice action.
- Summers argued counsel was needed to obtain and present expert medical testimony and because he is indigent and cannot afford an expert.
- The magistrate judge denied the motion for appointment of counsel.
- Summers appealed, asserting the denial was an abuse of discretion given the anticipated need for expert testimony and his limited ability to litigate and cross-examine.
- The court reviewed whether exceptional circumstances justified forced appointment of counsel for an indigent civil plaintiff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel must be appointed for an indigent civil plaintiff who needs expert testimony | Summers: appointment necessary because expert testimony is required to prove malpractice and he cannot afford one | Respondent: no automatic right to appointed counsel or experts under § 1915; appointment only in exceptional circumstances | Denied — no clear abuse of discretion; appointment not required merely because expert needed |
| Whether plaintiff's litigation abilities justify appointment of counsel | Summers: lacks skill for trial strategy and effective cross-examination | Respondent: Summers has not shown evidence will be largely conflicting or that he cannot adequately present the case | Denied — record shows Summers can adequately present his case; no exceptional circumstances found |
Key Cases Cited
- Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982) (appointment of counsel in civil rights cases requires exceptional circumstances)
- Cupit v. Jones, 835 F.2d 82 (5th Cir. 1987) (factors to determine exceptional circumstances: case type/complexity, plaintiff’s abilities, investigative ability, likelihood of conflicting testimony)
- Hannah v. United States, 523 F.3d 597 (5th Cir. 2008) (medical-malpractice claims may require expert testimony; Rule 706 contemplates court-appointed experts)
- Pedraza v. Jones, 71 F.3d 194 (5th Cir. 1995) (district court lacks authority under § 1915 to appoint an expert for an indigent litigant)