United States District Court, D. South Carolina, Columbia Division
ORDER AND REPORT AND RECOMMENDATION
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
plaintiff, Melodie Shuler, a self-represented litigant,
purports to bring this civil rights and personal injury
action on behalf of herself and her two minor children,
M.K.D. and M.T.S.D. This matter is before the court pursuant
to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.). By order dated February 12, 2019, the court
provided Shuler with the opportunity to obtain counsel for
her minor children. (ECF No. 9.)
has not retained counsel for her minor children, and the
deadline imposed by the court to do so has now passed.
Instead, Shuler filed a motion to appoint counsel for her
minor children. (ECF No. 13.) In the motion, Shuler indicates
she is indigent and cannot hire an attorney. (Id. at
1.) She claims she “exercised diligence in attempting
to secure counsel” but “many attorney are not
interest in vindicate civil right violations and have
employment contracts with the state of South Carolina
preventing them from taking cases against the state.”
(Id.) (errors in original).
is no right to appointed counsel in § 1983 cases.
Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975). The
court may use its discretion to request counsel to represent
an indigent in a civil action. See 28 U.S.C. §
1915(e)(1); Mallard v. United States Dist. Court for S.
Dist. of Iowa, 490 U.S. 296 (1989). However, such
discretion “should be allowed only in exceptional
cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th
Cir. 1975). Whether exceptional circumstances are present
depends on the type and complexity of the case, and the
pro se litigant's ability to prosecute it.
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.
1984), abrogated on other grounds by Mallard, 490
the court finds this case does not present exceptional
circumstances that would require the appointment of counsel.
While Shuler claims she has been diligent in her attempt to
hire counsel, she fails to provide any explanation as to what
steps she took to obtain counsel, and the court is not
persuaded that local attorneys are not interested in taking
cases to vindicate civil rights violations, or that there are
a lack of attorneys that are not conflicted because of
contracts with the State of South Carolina. Moreover,
Shuler's failure to obtain counsel, or attorneys'
unwillingness to take her children's case, are not
themselves exceptional circumstances justifying the
appointment of counsel. Cf Jackson v. Cty. of
McLean, 953 F.3d 1070 (7th Cir. 1992) (“While
there may be conditions or circumstances which preclude the
effective operation of the contingent fee system in
particular cases, we believe that a court contemplating an
appointment of counsel under § 1915(d) is justified in
subjecting an indigent's claim to heightened scrutiny if
the petitioner was unsuccessful in obtaining counsel”).
This is especially true for a litigant like Shuler who has
experience as a practicing attorney. Consequently,
Shuler's motion to appoint counsel for her minor children
is denied. (ECF No. 13.) Also, because Shuler has failed to
retain counsel for M.K.D. and M.T.S.D., the court recommends
the minor children be dismissed as plaintiffs in this action.
See generally Myers v. Loudoun
Cty. Pub. Schs., 418 F.3d 395, 401 (4th Cir.