Case: 13-50541 Document: 00513270491 Page: 1 Date Filed: 11/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50541 United States Court of Appeals
Fifth Circuit
FILED
Cons. w/ 14-50200 November 13, 2015
Lyle W. Cayce
MARIO NARANJO, Clerk
Plaintiff – Appellant,
v.
BOBBY THOMPSON; GEO GROUP, INCORPORATED; GEORGE ZOLY;
CLARENCE ANTONY; RICHARD CLANTON; ANNE NEWMAN;
CHRISTOPHER WHEELER; NORMEN CARLSON,
Defendants – Appellees.
Appeals from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Mario Naranjo, proceeding in forma pauperis under 28 U.S.C. § 1915,
appeals the district court’s denial of his motion for appointment of counsel to
help litigate his civil rights claims against the management company of the
prison where he was incarcerated. Despite finding that Naranjo “ha[d]
demonstrated the exceptional circumstances to warrant the appointment of
counsel,” the district court denied the motion because it had no funding with
which to compensate an appointed attorney, and it could find “no attorneys in
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No. 13-50541
the area willing or able to take the case pro bono.” While Naranjo’s appeal of
that ruling was pending before this court, proceedings continued below, and
the district court entered summary judgment against Naranjo, which he now
also appeals. Because federal courts have inherent power to order counsel to
accept an uncompensated appointment under the limited factual
circumstances here, we VACATE the district court’s orders denying
appointment of counsel and entering summary judgment and REMAND for
consideration of whether a compulsory appointment is warranted.
I.
While incarcerated at the Reeves County Detention Center (Reeves III)
in Pecos, Texas, 1 Naranjo sued the company managing the prison, GEO Group,
Inc., and several of its directors and employees, for multiple violations of his
constitutional rights. Naranjo was sentenced to serve his term of
imprisonment in the custody of the Federal Bureau of Prisons (BOP), and was
transferred in 2009 to Reeves III, a facility owned by Reeves County and
managed by GEO Group. Naranjo alleged that prison officials: (1) violated his
procedural due process rights by responding with deliberate indifference
toward grievances that he filed; (2) violated his right to be free from cruel and
unusual punishment by maintaining Reeves III at 166% of its capacity after
several day rooms were converted into dormitories; (3) maintained Reeves III
without proper regard for fire safety; (4) failed to maintain sanitary toilets in
the outdoor recreation area, forcing inmates to make a daily choice between
exercise and hygienic bathroom facilities and to endure unsanitary conditions
1 The Federal Bureau of Prisons Inmate Locator indicates that Naranjo’s term of
imprisonment has ended. Because the district court’s finding of exceptional circumstances
was based, in part, upon Naranjo’s inability to access discovery materials due to security
concerns of a prisoner accessing such documents, exceptional circumstances may no longer
exist. The district court is free to take account of any changed circumstances on remand.
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throughout the prison; (5) provided insufficient medical care to service the
increased population at Reeves III; (6) forced him to perform labor on behalf of
GEO Group; and (7) denied him equal protection of the law by transferring him
to Reeves III because he is Hispanic. Naranjo brought his claims under 42
U.S.C. § 1983, seeking both damages and injunctive relief. After evaluating
the complaint and determining “that summary dismissal [wa]s not
appropriate” under 28 U.S.C. § 1915A, the district court referred the case to a
magistrate judge.
Before either party had requested discovery, defendants moved for
summary judgment. Naranjo failed to respond within the eleven-day period
dictated by local court rules, and the magistrate judge ordered him to respond
within the following two weeks or risk the summary judgment motion being
treated as unopposed. Naranjo mailed a response eight days later, but it was
not received by the clerk and filed until a month after the magistrate judge’s
order. On the day the response was filed, and presumably without having seen
it, the magistrate judge issued an order noting that, despite the magistrate
judge’s earlier warning, Naranjo “ha[d] still not responded” to defendants’
motion for summary judgment. Naranjo re-sent his opposition to summary
judgment, explaining the wire-crossing and displaying considerable
frustration. For the first time, Naranjo moved for appointment of counsel
under 28 U.S.C. § 1915(e)(1). The magistrate judge denied the motion because
“the case is still in the pretrial phase,” “the present cause of action is not
complex, and Plaintiff will be able to adequately present his case.”
While defendants’ motion for summary judgment was pending, Naranjo
filed several interrogatories and requests for documents. Among his discovery
requests, Naranjo asked that defendants produce schematics reflecting the
original design of Reeves III, the names of corrections officers assigned to the
Reeves III recreation yard between April 2009 and January 2010, and
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schematics or other documents reflecting the conversion of Reeves III day
rooms into dormitories. In their objections to all three discovery requests,
defendants cited prison security concerns. Acknowledging those concerns, the
magistrate judge ordered that all three items be filed under seal, and
defendants complied.
Naranjo moved under Rule 56(d) to delay summary judgment pending
additional discovery. The magistrate judge recommended granting summary
judgment on all of Naranjo’s claims and subsequently denied the Rule 56(d)
motion. After Naranjo submitted objections to the magistrate judge’s report
and recommendations, the district court adopted the recommendations in part
but denied summary judgment as to three of Naranjo’s claims. For each of the
three surviving claims—Naranjo’s Eighth Amendment overcrowding, fire
safety, and sanitation claims—the district court determined that conflicting or
under-developed evidence precluded summary judgment. The magistrate
judge then issued an order addressing Naranjo’s outstanding discovery
requests and scheduling an evidentiary hearing.
A week before the evidentiary hearing, Naranjo moved a second time for
the appointment of counsel. Referencing the upcoming hearing, Naranjo
indicated that he “cannot participate because to do so properly would require
more legal skills than the Plaintiff has or can develope [sic].” He professed to
being “unqualified to either present or cross-examine those witnesses”
necessary to the presentation of his claims. Naranjo also noted that the case
“involves credibility issues and conflicting testimony.” A week after the
evidentiary hearing, the magistrate judge ordered Naranjo to indicate what
efforts he had already made to secure counsel on his own behalf. Naranjo
responded that, as a native of Florida, he was not familiar with legal
organizations in Texas, but he had contacted the American Civil Liberties
Union office in Austin to ask for a referral and had not received any response.
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At the evidentiary hearing, Naranjo did not introduce any evidence.
After being repeatedly asked by the magistrate judge whether he had any
evidence to submit on the fire-safety claim, Naranjo explained:
Your Honor, with all due respect, I’m going to be standing by my
declaration, the sworn pleadings that I’ve also put in throughout
the hearing – proceedings, and that’s as far as I’m going to – I have
no other evidence. I have been denied access to any reports, I do
not – I’m not a trained attorney, I do not know how to conduct an
evidentiary hearing, so I have to stand by my sworn declaration
and my verified pleadings.
Naranjo responded similarly when asked whether he had evidence to submit
on the overcrowding claim and the sanitation claim. When asked whether he
wanted to cross-examine the only witness at the hearing, former Reeves III
Warden Bobby Thompson (the named defendant), Naranjo replied: “Your
Honor, I have no questions for Warden Thompson. I’m certainly not an
attorney; I wouldn’t know where to begin.” When asked whether he had any
objections to the defendants introducing as exhibits the Fire Emergency Plans
that GEO Group had submitted to the BOP, Naranjo responded: “Your Honor,
I – I don’t have a clue as to what they mean, to be honest with you.”
Naranjo twice complained that the denial of his discovery requests
impeded his ability to present evidence and participate meaningfully in the
hearing. He also noted several times that, without counsel, he could not access
the documents that defendants had filed under seal. Each time, the magistrate
judge replied that “these documents will be kept under seal at this time, and
they may be reviewed by an attorney or expert, should this case go to a jury
trial.” After the magistrate judge had run through all of the outstanding
discovery issues and asked Naranjo if he had any others, Naranjo responded:
“I certainly don’t at this point. As I mentioned before, I wish I could be more
forthcoming, but I’m certainly not a professional in the law. And, you know,
these discovery issues are just very confusing to me.”
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Nearly five months after the evidentiary hearing, the district court ruled
on Naranjo’s second motion for appointment of counsel. The district court
found that “the circumstances surrounding the current stage of his lawsuit
justify representation” and that Naranjo had “demonstrated the exceptional
circumstances to warrant the appointment of counsel.” The court focused on
several “limitations” impeding Naranjo’s ability to litigate his case
uncounseled. In particular, the court weighed the fact that, in light of his
status as an inmate, Naranjo was barred from viewing and responding to
discovery that defendants had filed under seal due to security concerns. The
district court also weighed the fact that presenting Naranjo’s claims would
likely involve conflicting testimony. All told, “the Court agree[d] that the
appointment of counsel w[ould] expedite the lawsuit, promote judicial
economy, and [wa]s ultimately justified under the circumstances.”
Despite these findings, the district court denied the motion, lamenting
that an appointment was impossible “[g]iven the remote location of Pecos,
Texas and its dearth of legal representation.” The district court reported
having reached out to all seven licensed attorneys practicing in Pecos, all three
attorneys admitted in the Western District and practicing in Reeves County (a
fourth is now a local county judge), and legal aid organizations including the
Texas Civil Rights Project. According to the district court, “none of the
attorneys [it] contacted . . . were able to accept Plaintiff’s case pro bono.” The
court could not offer compensation because “there is no special fund for
appointment of counsel, the Court’s discretionary budget is limited,” and “no
funding exists for the appointment of counsel in civil in forma pauperis cases
filed under § 1983” in the Western District.
The district court considered ordering an unwilling attorney to take the
case, but understood that option to be foreclosed, citing the Supreme Court’s
decision in Mallard v. U.S. District Court for the Southern District of Iowa, 490
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U.S. 296 (1989), for the proposition that “courts are not empowered by [28
U.S.C. § 1915(e)(1)] to make compulsory appointments in § 1983 actions.” The
district court “urged [Naranjo] to immediately appeal this Order so the Fifth
Circuit can provide guidance on the appointment of counsel” in such
circumstances. Naranjo did so.
Shortly after Naranjo appealed the denial of his motion for appointment
of counsel, defendants filed a second motion for summary judgment. They
argued that Naranjo could not succeed on his § 1983 claims because “Naranjo’s
confinement [wa]s plainly under the color of federal law,” not state law, and to
the extent that his claims were construed as arising under Bivens, private
companies managing prisons under contract with the federal government are
not proper Bivens defendants. Defendants also argued that there were no
factual disputes as to each of Naranjo’s three remaining claims. Accepting
defendants’ arguments, the district court granted summary judgment.
Naranjo appealed, and we consolidated the two appeals. 2
II.
We first review the denial of Naranjo’s motion for appointment of
counsel. The denial of a motion for appointment of counsel in a civil rights case
is immediately appealable as a collateral order. 3 Robbins v. Maggio, 750 F.2d
405, 413 (5th Cir. 1985). We review for abuse of discretion. Baranowski v.
Hart, 486 F.3d 112, 126 (5th Cir. 2007).
2In granting Naranjo’s motion for leave to proceed in forma pauperis on appeal from
summary judgment, we instructed the parties to brief the question “whether an entity that
contracts not with the federal Bureau of Prisons (BOP), but rather contracts with Reeves
County, Texas, to manage the Reeves County Detention Center in accordance with the
County’s contract with the BOP, can be subject to § 1983 liability.”
3This rule is contrary to the rule in the majority of circuit courts, see Marler v. Adonis
Health Prods., 997 F.2d 1141, 1142 nn.1–3 (5th Cir. 1993) (collecting cases), but the Supreme
Court has repeatedly declined to resolve the split, see Welch v. Smith, 484 U.S. 903 (1987)
(denying certiorari); Henry v. Detroit Manpower Dep’t, 474 U.S. 1036 (1985) (same).
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A.
A § 1983 plaintiff, even if demonstrably indigent, is not entitled to
appointed counsel as a matter of right. Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982). First, an indigent plaintiff is ineligible for appointment of
counsel unless the district court determines that his claims meet a threshold
level of plausibility. Under the statute governing in forma pauperis
proceedings, the district court must dismiss a case if it determines, at any time,
that the plaintiff has only frivolous claims for relief. See 28 U.S.C.
§ 1915(e)(2)(B). The barrier to frivolous suits “embraces not only the
inarguable legal conclusion, but also the fanciful factual allegation,” and
“[d]ismissals on th[is] ground[] are often made sua sponte prior to the issuance
of process.” Neitzke v. Williams, 490 U.S. 319, 324, 325 (1989). If the plaintiff
is a prisoner, the district court must formally review the complaint
immediately after it is filed and dismiss any claims it deems frivolous. See 28
U.S.C. § 1915A(b)(1). In Naranjo’s case, after “[p]reliminary examination of
the Complaint,” the district court determined “that summary dismissal [wa]s
not appropriate.”
Second, even when a plaintiff has nonfrivolous § 1983 claims, a “trial
court is not required to appoint counsel . . . unless the case presents exceptional
circumstances.” Ulmer, 691 F.2d at 212. Though we have declined to
articulate a “comprehensive definition of exceptional circumstances,” id. at 213
(quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982)), we have supplied
factors that a district court should consider in determining whether
exceptional circumstances warrant the appointment of counsel, including:
1. the type and complexity of the case; 2. the petitioner’s ability to
present and investigate his case; 3. the presence of evidence which
largely consists of conflicting testimony so as to require skill in
presentation of evidence and in cross-examination; and 4. the
likelihood that appointment will benefit the petitioner, the court,
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and the defendants by shortening the trial and assisting in just
determination.
Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (internal quotation
marks and citation omitted). District courts may also consider the extent of a
plaintiff’s attempts to secure private counsel independently. See Jackson v.
Cain, 864 F.2d 1235, 1242 (5th Cir. 1989).
In ruling on Naranjo’s second motion for appointment of counsel, the
district court found that Naranjo had “demonstrated the exceptional
circumstances to warrant the appointment of counsel.” It reached that finding
by weighing the fact Naranjo could not, as a prisoner, view and respond to
discovery that defendants had filed under seal and the fact that litigating
Naranjo’s claims would likely involve conflicting testimony. The district court
concluded that, “[g]iven the limitations facing Plaintiff, . . . the appointment of
counsel will expedite the lawsuit, promote judicial economy, and is ultimately
justified under the circumstances.”
As noted above, despite these findings, the district court denied the
motion because funding was unavailable and “there are no attorneys in the
area willing or able to take the case pro bono.” Defendants, perhaps sensing
the fragility of that ruling in their favor given that the district court’s findings
supported the opposite outcome, challenge the underlying findings. Because
defendants challenge the underlying factual findings, we review those findings
for clear error. See Rice v. Astrue, 609 F.3d 831, 836 n.22 (5th Cir. 2010).
The district court did not clearly err in finding that the existence of
sealed discovery weighed in favor of appointing counsel. The discovery filed
under seal included a schematic of the original design of Reeves III, the names
of corrections officers assigned to the Reeves III recreation yard between April
2009 and January 2010, and documents reflecting the conversion of Reeves III
day rooms into dormitories. Defendants argue that because “the sealed
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documents are of very limited value in this case,” the district court was wrong
to invoke them in finding that exceptional circumstances existed warranting
appointment of counsel. Defendants also contend that Naranjo can acquire all
of the information he needs by cross-examining a fire warden and a
representative of the BOP, and that security concerns would likely prevent
even an appointed attorney from reviewing the sealed documents.
We decline to second-guess the district court’s determination as to the
importance of the sealed documents relative to other sources of information.
We note in addition that, at the evidentiary hearing, defendants’ counsel
questioned Warden Thompson about one of the sealed documents in the
context of the overcrowding claim. It is difficult to envision how Naranjo
possibly could have conducted a thorough cross-examination without access to
that document. 4 Finally, in light of the magistrate judge’s comment at the
evidentiary hearing that “these documents will be kept under seal at this time,
and they may be reviewed by an attorney or expert, should this case go to a
jury trial,” it is unclear whether the sealed documents will remain
unreviewable even if an attorney is appointed, as defendants suggest.
Likewise, the district court did not clearly err in finding that the
likelihood of conflicting testimony weighed in favor of appointing counsel.
Defendants challenge this finding on the ground that Naranjo “demonstrated
sufficient ability to investigate and present evidence.” Defendants are correct
that many of Naranjo’s filings reflect basic competency in legal analysis and
discovery procedure. In previous cases, we have indeed looked to that sort of
4 Indeed, this aspect of the evidentiary hearing rendered it almost Kafkaesque.
Naranjo was denied an opportunity to review documents filed under seal, and then when one
of those documents was discussed at the hearing, he was expected to cross-examine the
witness who discussed it or present contrary evidence. It is little wonder that he could not
do either.
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track record in denying appointment of counsel. See, e.g., Jackson v. Dall.
Police Dep’t, 811 F.2d 260, 262 (5th Cir. 1986) (noting plaintiff had “done a very
credible job in presenting motions and in filing supporting papers,” having
“filed ten different items”). But the record also discloses quite a few mishaps
and wire-crossings resulting from Naranjo’s inexpert motions practice. And
Naranjo was essentially a spectator at the evidentiary hearing, repeatedly
stating he could not fully participate because he was not a trained attorney.
All told, we cannot say that the district court clearly erred in finding that
“appointment of counsel ... [wa]s ultimately justified under the[]
circumstances” in part because of the likelihood that Naranjo’s claims would
involve conflicting testimony that he would be unable to present effectively
without an attorney.
Defendants also challenge the district court’s finding that exceptional
circumstances existed warranting the appointment of counsel by arguing that
Naranjo’s claims are “neither factually nor legally complex.” Defendants have
on their side the magistrate judge’s assessment, in response to Naranjo’s
earlier motion for appointment of counsel, that “the present cause of action is
not complex.” However, proceedings developed significantly between the first
and second motions for appointment of counsel, and even if the merits of
Naranjo’s claims are not complex, the district court was free to weigh other
factors more heavily in finding that exceptional circumstances existed. See
Parker, 978 F.2d at 193 (directing district court to appoint counsel, without
addressing the complexity of the case, because “without counsel, [Appellant]
would have to investigate by himself the prison’s policies and employees of the
very jail where he is incarcerated”). The district court did not clearly err in
finding that Naranjo “demonstrated the exceptional circumstances to warrant
the appointment of counsel,” or in weighing any of the factors we have directed
courts to consider when considering such an appointment.
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Once a district court finds that a particular case presents exceptional
circumstances, it abuses its discretion by declining to appoint counsel. See
Ulmer, 691 F.2d at 212 (“The trial court is not required to appoint counsel for
an indigent plaintiff asserting a claim under § 1983 unless the case presents
exceptional circumstances.” (citations omitted)). District courts have
“considerable discretion” in deciding whether to appoint counsel. Branch, 686
F.2d at 267. But that discretion ends once exceptional circumstances are
found. The exceptional circumstances test is a means of identifying those
plaintiffs with nonfrivolous claims who, if uncounseled, may not receive a
meaningful hearing. Having identified such a plaintiff, a district court cannot
then send him off on his own consistent with its duty to advance the proper
administration of justice.
B.
District courts seeking to appoint counsel to represent an indigent
plaintiff have a range of means available to them, including offering
compensation in some districts and appealing to willing pro bono counsel in
many others. See Part II.C., infra. The district court in this case stated that
it had pursued those avenues and was ultimately unsuccessful. When these
options fail, however, courts also have inherent power to compel counsel to
accept an uncompensated appointment. As the district court recognized and
as defendants point out on appeal, compulsory appointments are not
authorized by 28 U.S.C. § 1915(e)(1), the statutory provision governing
appointment of counsel in in forma pauperis proceedings. Mallard, 490 U.S.
at 298. 5 But Mallard limited its holding to the statute, id. at 309–10, having
determined that the statutory verb “request” encompasses only non-
5 Mallard references 28 U.S.C. § 1915(d), which was later redesignated as 28 U.S.C.
§ 1915(e). See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L.
No. 104-134, 110 Stat. 1321, 1373–74.
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compulsory appointments, id. at 301–02. The possibility of extra-statutory
authority to make compulsory appointments was expressly left open: the Court
“d[id] not reach the question whether the federal courts have inherent
authority to order attorneys to represent litigants without pay.” Id. at 308 n.8.
We hold that they do, and that the district court abused its discretion by not
considering that option.
Simply by virtue of having been created, federal courts are vested with
inherent power to take action “essential to the administration of justice.”
Michaelson v. United States, 266 U.S. 42, 65–66 (1924). Accordingly, “[c]ourts
have (at least in the absence of legislation to the contrary) inherent power to
provide themselves with appropriate instruments required for the performance
of their duties.” In re Peterson, 253 U.S. 300, 312 (1920). “Action taken by a
federal court in reliance on its inherent powers must somehow be
indispensable to reaching a disposition of the case.” ITT Cmty. Dev. Corp. v.
Barton, 569 F.2d 1351, 1362 n.20 (5th Cir. 1978).
Federal courts’ inherent powers undoubtedly encompass the
appointment of counsel in at least some circumstances. For instance, a court’s
power to appoint counsel for a criminal defendant, “even in the absence of a
statute, cannot be questioned.” Powell v. Alabama, 287 U.S. 45, 73 (1932).
This power is rooted in the Sixth Amendment, but courts have also
characterized it as an exercise of inherent power. See, e.g., United States v.
Accetturo, 842 F.2d 1408, 1412 (3d Cir. 1988). Indeed, multiple districts in this
circuit have recently held that courts possess inherent power to appoint
counsel for an insolvent corporate criminal defendant, even though the Sixth
Amendment and Criminal Justice Act do not authorize such appointments.
United States v. Burk, No. EP-14-CR-240-DCG, 2014 WL 2800759, at *9–13
(W.D. Tex. June 18, 2014); United States v. JB Tax Prof’l Servs., Inc., No. 13-
127, 2013 WL 6004047, at *5 (E.D. La. Nov. 13, 2013). Outside the context of
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criminal defense, federal courts have inherent power to appoint counsel to
prosecute criminal contempt proceedings, Young v. U.S. ex rel. Viotton et Fils
S.A., 481 U.S. 787, 793 (1987), to serve as guardian ad litem for a minor whose
interests diverge with those of his general representative, Hoffert v. Gen.
Motors Corp., 656 F.2d 161, 164 (5th Cir. Unit A Sept. 1981), and to represent
a victorious civil plaintiff against trial counsel who seeks to withdraw
judgment funds paid into the court’s registry in satisfaction of the judgment,
Karim v. Finch Shipping Co., 374 F.3d 302, 307 (5th Cir. 2004).
Courts’ inherent power to appoint counsel has long included the power
to compel an attorney to take a case, at least in the criminal defense context.
“Attorneys are officers of the court, and are bound to render service when
required” to do so by an appointment issued under a court’s extra-statutory
powers. Powell, 287 U.S. at 73; see also FTC v. Super. Ct. Trial Lawyers Ass’n,
493 U.S. 411, 453 (Blackmun, J., concurring in part and dissenting in part)
(suggesting that boycott by criminal defense attorneys wielded no market
power because courts “had the power to terminate the boycott at any time by
requiring any or all members of the District Bar . . . to represent indigent
defendants pro bono . . . on pain of contempt”). The inherent power to compel
counsel to represent criminal defendants is grounded in necessity; without it,
“[t]he court’s responsibility for the administration of justice would be
frustrated.” Accetturo, 842 F.2d at 1413.
So too with the power to compel attorneys to represent indigent civil
rights plaintiffs. 6 The possibility of such an appointment arises only when an
6 No circuit court has directly addressed whether courts have inherent power to make
compulsory appointments in the civil context. However, the language in Mallard leaving
that issue unresolved has been invoked by the Third Circuit in an opinion holding that courts
have inherent power to order unwilling attorneys to serve as uncompensated standby counsel
for criminal defendants proceeding pro se. See United States v. Bertoli, 994 F.2d 1002, 1016–
17 (3d Cir. 1993). At least one district court has squarely held, after exhaustive review of the
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indigent plaintiff has colorable claims that will not receive a meaningful
hearing without counsel (i.e. exceptional circumstances exist) and when all
other options for making an appointment have failed. Under such conditions,
a court cannot carry out its duties without ordering an attorney to take the
case. “Even the most dedicated trial judges are bound to overlook meritorious
cases without the benefit of an adversary presentation.” Bounds v. Smith, 430
U.S. 817, 826 (1977).
The inherent power to make a compulsory appointment is also rooted in
courts’ duty to maintain the functioning of the civil justice system as a whole.
“[T]he bar’s monopoly over legal services entails obligations to court and
society.” Bertoli, 994 F.2d at 1018. These obligations often take the form of
ethical duties to the profession as opposed to legally enforceable requirements,
but some bar associations give force to those ethical duties by mandating that
attorneys perform a certain quantity of pro bono work for indigents each year,
and the Supreme Court has approved of such arrangements. See Sup. Ct. of
N.H. v. Piper, 470 U.S. 274, 287 & n.22 (1985) (citing the mandatory pro bono
plan of the El Paso Bar). Courts have a critical role to play as well. Inherent
powers exist where necessary to serve the proper administration of justice.
“The court’s responsibility for the administration of justice would be frustrated
were it unable to enlist or require the services of those who have, by virtue of
academic literature, that courts have inherent power to order counsel to represent indigent
civil plaintiffs. See Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221 (D. Neb. 1995).
The Ninth Circuit, in an unpublished decision, has held that a district court did not
abuse its discretion by declining to make a compulsory appointment where counsel had
refused to take the case, citing Mallard for the proposition that the district court “lacked the
authority to require counsel to represent [the plaintiff].” Cooper v. City of Ashland, 187 F.3d
646 (Table), at *4 (9th Cir. 1999) (unpublished). The Cooper opinion did not address inherent
authority. See also Colbert v. Rickmon, 747 F. Supp. 518 (W.D. Ark. 1990) (holding that
courts have no inherent authority to make compulsory appointments in § 1983 cases).
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their license, a monopoly on the provision of such services.” Accetturo, 842 F.2d
at 1413. 7
Some courts and commentators have raised constitutional concerns with
compelled pro bono appointments, particularly under the Fifth Amendment
Takings Clause and the Thirteenth Amendment prohibition of involuntary
servitude. 8 This circuit has expressly rejected these concerns. See Dolan, 351
at 672 (Fifth Amendment); White v. U.S. Pipe & Foundry Co., 646 F.2d 203,
205 n.3 (5th Cir. Unit B May 1981) (Thirteenth Amendment).
Nor is it any argument against courts’ inherent power to appoint counsel
to represent indigent civil litigants that such power would be partially
duplicative of the authority conferred by § 1915(e)(1) to “request an attorney”
in in forma pauperis cases. “Statutory provisions may simply codify existing
rights or powers.” Mallard, 490 U.S. at 307. We hold that, where a district
court has determined that exceptional circumstances warrant appointment of
counsel and has unsuccessfully attempted to secure a non-compulsory
appointment, the court may invoke its inherent power to order an attorney to
represent an indigent civil rights litigant pro bono.
C.
We emphasize that this is a power of last resort. Inherent powers “must
be used with great restraint and caution.” Nat. Gas Pipeline Co. of Am. v.
7Given the Article III roots of inherent powers, the Ninth Circuit has looked to British
and early-Colonial history as evidence that courts have inherent power to make mandatory
appointments. See United States v. Dillon, 346 F.2d 633, 636 (9th Cir. 1965). Though we
have cited Dillon approvingly, see Dolan v. United States, 351 F.2d 671, 672 (5th Cir. 1965),
subsequent scholarship has indicated that the relevant historical record is “murky.” Mallard,
490 U.S. at 304 (citing David L. Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55
N.Y.U.L. Rev. 735, 749–62 (1980)).
8See, e.g., Colbert, 747 F. Supp. at 522; Bruce Andrew Green, Note, Court Appointment
of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assistance, 81
Colum. L. Rev. 366, 377–90 (1981).
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Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996). We expect that
occasions for mandatory appointments will be rare indeed. In the first place,
exceptional circumstances warranting appointment of counsel are, by their
very definition, exceptional. Second, even where exceptional circumstances
warrant appointment of counsel, other options will be available in all but the
rarest of cases, and a court should not invoke its inherent power unless it has
exhausted all other options.
District courts seeking to appoint counsel have a number of resources at
their disposal. Several of the district courts within our circuit maintain lists
of attorneys willing to accept civil rights appointments pro bono; indeed, the
Western District of Texas is among them. 9 The Southern District of Texas
Chapter of the Federal Bar Association provides a similar service, as do
numerous legal aid organizations throughout the circuit. Courts may use bar
admission fees to compensate pro bono counsel, or at least reimburse their
expenses, 10 and the Fifth Circuit does so along with some of its district courts. 11
Some attorneys may also be attracted by the possibility of recovering fees if
they prevail. See 42 U.S.C. § 1988(b).
9 U.S. Dist. Court for the W. Dist. Tex., Pro Bono Civil Appointments,
http://www.txwd.uscourts.gov/ForAttorneys/SitePages/ProBonoCivilAppts.aspx. It is not
clear from the order denying Naranjo’s motion for appointment of counsel whether the
district court consulted this list, but it is free to do so on remand. We note that the Western
District is vast, and it may be that none of the attorneys who have volunteered to accept
appointments could feasibly litigate a case in the Pecos Division. See also U.S. Dist. Court
for the N. Dist. Tex., Pro Bono Civil Panel Information, http://www.txnd.uscourts.gov/pro-
bono-civil-panel-information; U.S. Dist. Court for the Middle Dist. La., Civil Pro Bono Pilot
Program (2015), http://www.lamd.uscourts.gov/civil-pro-bono-pilot-program; U.S. Dist. Court
for the E. Dist. La., Resolution for Appointment of Pro Bono Counsel in Civil Cases (2014),
http://www.laed.uscourts.gov/news/resolution-appointment-pro-bono-counsel-civil-cases.
10 Admin. Office of the U.S. Courts, 13 Guide to Judiciary Policy § 1220(b)(6) (2015).
U.S. Court of Appeals for the Fifth Circuit, Plan for Administration of Bench and
11
Bar Fund § 3(e) (2014).
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Moreover, attorneys have ethical obligations to represent their fair share
of indigent clients that go beyond their duties to the court. In Texas, where
Naranjo brought his case, these obligations are formalized in the Texas
Disciplinary Rules of Professional Conduct, which highlight the “moral
obligation of each lawyer” to provide legal services to those unable to pay 12 and
require that attorneys accept court appointments absent good cause. 13 To the
extent that attorneys commit to following these rules upon admission to the
bar, “representation of indigents under court order, without a fee, is a condition
under which lawyers are licensed to practice as officers of the court.” Dolan,
351 F.2d at 672 (quoting Dillon, 346 F.3d at 635). It is not too much to expect
that attorneys will accept these appointments as a matter of course, even if
that burden falls most heavily on those practicing in areas where
representation is hardest to find. 14 “Lawyers . . . have obligations by virtue of
their special status as officers of the court,” including “[a]ccepting a court’s
request to represent the indigent.” Mallard, 490 U.S. at 310–11 (Kennedy, J.,
concurring).
For all these reasons, we trust that in all but the rarest of cases, courts
will be able to locate and appoint willing counsel without resorting to
mandatory appointments. Nevertheless, we take the district court at its word
that willing pro bono counsel could not be found to take Naranjo’s case “[g]iven
the remote location of Pecos, Texas and its dearth of legal representation.”
12Tex. Disciplinary R. Prof’l Conduct, Preamble; see also La. R. Prof’l Conduct 6.1;
Miss. R. Prof’l Conduct 6.1.
13Tex. Disciplinary R. Prof’l Conduct 6.01; see also La. R. Prof’l Conduct 6.2; Miss. R.
Prof’l Conduct 6.2.
14Cf. U.S. Dist. Court for the S. Dist. Tex., McAllen Div., Criminal Justice Act Plan
§ VI.A (2011) (requiring that all members of the Southern District of Texas Bar with offices
in McAllen serve on the McAllen Criminal Justice Act panel).
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Understandable as that predicament may be, where exceptional
circumstances warrant the appointment of counsel, the dearth of willing
attorneys simply is not a reason to deny a motion for appointment. Branch,
686 F.2d at 267 (“The district court erred in exercising its considerable
discretion to appoint counsel under 28 U.S.C. § 1915(d) 15 by denying such
appointment because of the unavailability of counsel.”). Civil rights do not thin
out at the city limits. If a court has exhausted its non-coercive means for
making an appointment, it must consider invoking its inherent power to make
a mandatory appointment.
When a court is weighing a mandatory appointment, it may take account
of additional factors beyond those we have previously laid out for evaluating
motions for appointment of counsel under § 1915(e)(1). See Bradshaw v. U.S.
Dist. Ct. for the S. Dist. Cal., 742 F.2d 515, 516–18 (9th Cir. 1984) (approving
district court’s consideration, in deciding not to make a mandatory
appointment, of attorneys’ assessment that the plaintiff’s claims were
meritless and that taking the case could subject them to discipline, as well as
of the plaintiff’s antagonistic behavior toward previous counsel). A court
certainly should not order an attorney to accept an appointment that she has
“good cause” to decline. See Tex. Disciplinary R. Prof’l Conduct 6.01. On
remand, the district court may properly take account of such considerations
along with any changes in Naranjo’s circumstances that weigh against making
an appointment.
III.
Because the rule of our circuit is that denials of motions for appointment
of counsel are immediately appealable, we have scant authority dictating the
proper relief in a case such as this one where proceedings continued after the
15 See supra note 5.
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district court declined to appoint counsel, and we are asked to review not only
that ruling, but also the subsequent entry of summary judgment. Because
Naranjo’s attempts to avoid summary judgment were hindered by the absence
of counsel, we follow the practices of our sister circuits and vacate summary
judgment without prejudice to its re-urging rather than reach the merits.
When a pro se litigant proceeds to trial after having been denied
appointed counsel, his performance at trial is affected by that denial, and the
denial is held erroneous on appeal, “[t]he ordinary remedy . . . is remand for
retrial . . . with the assistance of recruited pro bono counsel.” Pruitt v. Mote,
503 F.3d 647, 650 (7th Cir. 2007) (en banc). Similarly, where a denied motion
for appointment of counsel is followed by a denied motion to amend the
complaint, the Eleventh Circuit has indicated that a plaintiff should be
afforded a renewed opportunity to amend his complaint on remand with the
aid of counsel. Smith v. Fla. Dep’t of Corrections, 713 F.3d 1059, 1065 (11th
Cir. 2013). Closest to our case, where a motion for appointment of counsel is
denied amidst discovery, and summary judgment is later entered against the
plaintiff, the Third Circuit has vacated summary judgment and indicated that
additional discovery should be allowed if counsel is appointed on remand.
Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).
Naranjo’s ability to respond to a complex summary judgment motion was
no doubt hindered by the denial of his motion for appointment of counsel. 16
16 Defendants’ summary judgment motion argues a thorny question that they
acknowledge “[n]o circuit has answered”: whether private companies managing county-
owned prisons housing federal prisoners are proper § 1983 defendants. The district court’s
summary judgment order in this case created a conflict within the Western District on that
question. See Alvarez v. Geo Grp., Inc., No. SA-09-CV-0299, 2010 WL 743752, at *2 (W.D.
Tex. Mar. 1, 2010) (liability available under § 1983). Were we to address that question, we
would likely need to seek input from the BOP. We do not wade into that thicket today, but
have little trouble determining that when Naranjo did so, he would have been better off with
the aid of counsel.
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See Tabron, 6 F.3d at 151 (“During discovery, [plaintiff’s] lack of resources and
his unfamiliarity with discovery rules and tactics put him at a significant
disadvantage.”). “Because [summary judgment’s] consequences are so severe,
. . . we must always guard against premature truncation of legitimate lawsuits
merely because of unskilled presentations.” Murrell v. Bennett, 615 F.2d 306,
311 (5th Cir. 1980). If the district court appoints counsel on remand, it must
then conduct all subsequent proceedings anew, including allowing for
reasonable additional discovery. See Tabron, 6 F.3d at 158.
IV.
For the foregoing reasons, we VACATE summary judgment and the
denial of Naranjo’s second motion for appointment of counsel and REMAND
for proceedings consistent with this opinion.
21