In this pro se civil rights suit, brought under 42 U.S.C. § 1983 (Supp. III 1979), the plaintiff, Ulmer, a former prisoner in the jail of Jones County, Mississippi, alleges that unsanitary conditions and inadequate facilities at the jail, including lack of medical treatment and facilities for exercise, deprived him of his federal constitutional rights. He seeks compensatory and punitive damages from the Sheriff of Jones County and from members of the county Board of Supervisors, together with declaratory and injunctive relief.
Ulmer's request for appointment of counsel was denied. However, he conducted considerable discovery by interrogatories. He also submitted a motion for summary judgment, which was not acted on. In the order denying the appointment of counsel, the court gave Ulmer thirty days in which either to employ his own attorney or elect to represent himself, and stated that, if neither was done, the case would be ordered dismissed without prejudice. Thereafter, on July 14, 1981, Ulmer filed a motion to subpoena his witnesses, most of whom were in the Mississippi State Penitentiary at Parchman. He further moved to have all necessary writs of habeas corpus ad testificandum issue for those witnesses in Mississippi state custody. We do not find in the record any order fixing the case for trial or any order or other document notifying Ulmer to appear for trial.
Nonetheless, on August 25, 1981, the district court entered a Judgment of Dismissal stating:
(Emphasis supplied.) Ulmer then moved to "reconsider," on the ground that no court order had issued for him to be transported from the penitentiary to court. The motion was denied by the district court, which ruled as follows:
(Emphasis supplied.) The record contains no motion for dismissal. If an oral motion for dismissal was made, no transcript of it was filed in the record.
Because Ulmer did make a timely request that writs of habeas corpus ad testificandum issue for the witnesses in Parchman, and there is nothing in the record to indicate that the writs did in fact issue, or that his request for the writs was even evaluated by the district court, the dismissal is reversed. See Itel Capital Corp. v. Dennis Mining Supply & Equip., Inc., 651 F.2d 405, 407-08 (5th Cir. 1981); Ballard v. Spradley, 557 F.2d 476, 479-81 (5th Cir. 1977); Jerry v. Francisco, 632 F.2d 252, 255-56 (3d Cir. 1980) (per curiam); Peppard v. United States, 314 F.2d 623, 625 (8th Cir. 1963) (per curiam). Accord, McKnight v. Blanchard, 667 F.2d 477, 480 n. 2 (5th Cir. 1982) (dictum).
The case is remanded to the district court for such further proceedings as may be appropriate. We express no opinion whatever on the merits of the case except to note that, on its face, the complaint insofar as it seeks damages
In view of the fact that Ulmer currently is, and was at the time he filed this action, incarcerated in the State Penitentiary, not in the Jones County Jail, and he has not brought a class action, the petition for injunctive or declaratory relief may be moot, see Mitchum v. Purvis, 650 F.2d 647, 648 (5th Cir. 1981) (per curiam); Marden v. Int'l Ass'n of Machinists & Aerospace Workers, 576 F.2d 576, 581-82 (5th Cir. 1978); Scott v. Jones, 492 F.2d 130 (5th Cir. 1974) (per curiam); Rhodes v. Bureau of Prisons, 477 F.2d 347 (5th Cir. 1973) (per curiam); Weaver v. Wilcox, 650 F.2d 22, 27 & n. 13 (3d Cir. 1981), and nothing in this opinion prevents the disposition of some or all of the issues raised by the complaint on proper motion, duly noticed. However, the court shall accord this plaintiff the same notices and the same rights as other litigants. If his appearance in court is necessary to enable him to assert his interests and to protect his rights, an appropriate order for him to appear, by writ of habeas corpus ad testificandum, shall be issued.
Ulmer challenges the refusal of the district court to appoint counsel for him. A civil rights complainant has no right to the automatic appointment of counsel. Branch v. Cole, 686 F.2d 264 (5th Cir. 1982) (per curiam); Wright v. Dallas County Sheriffs Department, 660 F.2d 623, 625-26 (5th Cir. 1981). The trial court is not required to appoint counsel for an indigent plaintiff asserting a claim under 42 U.S.C. § 1983 (Supp. III 1979) unless the case presents exceptional circumstances. Branch v. Cole, supra, 686 F.2d at 266.
The magistrate refused to appoint counsel for Ulmer because "it is doubtful that any relief may be granted, ... this is a fee producing case, if successful, and ... it would be oppressive to appoint involuntary counsel, and ... the petitioner has made no showing that he is unable to secure private counsel." While Ulmer prays for the award of substantial damages, it is not so obvious to us as it was to the magistrate that counsel can readily be found to handle the case
The district court may, therefore, appropriately require Ulmer to respond directly to an inquiry concerning what effort, if any, he has made to secure private counsel. Exercising its own judicial discretion, it should then determine whether this is an exceptional case in which the appointment of counsel is appropriate.
A federal court has discretion to appoint counsel if doing so would advance the proper administration of justice. 28 U.S.C. § 1915(d) (1976). Although "[n]o comprehensive definition of exceptional circumstances is practical," Branch v. Cole, supra, 686 F.2d at 266, a number of factors should be considered in ruling on requests for appointed counsel. These include: (1) the type and complexity of the case, Branch v. Cole, supra, 686 F.2d at 266; Maclin v. Freake, 650 F.2d 885, 888 (7th Cir. 1981); (2) whether the indigent is capable of adequately presenting his case, Branch v. Cole, supra, 686 F.2d at 266; Maclin v. Freake, supra, 650 F.2d at 888; Drone v. Hutto, 565 F.2d 543, 544 (8th Cir. 1977); (3) whether the indigent is in a position to investigate adequately the case, Maclin v. Freake, supra, 650 F.2d at 888; White v. Walsh, 649 F.2d 560, 563 (8th Cir. 1981); Shields v. Jackson, 570 F.2d 284, 285-86 (8th Cir. 1978) (per curiam); Peterson v. Nadler, 452 F.2d 754 (5th Cir. 1971); and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination, Maclin v. Freake, supra, 650 F.2d at 888; Manning v. Lockhart, 623 F.2d 536, 540 (8th Cir. 1980).
The district court should also consider whether the appointment of counsel would be a service to Ulmer and, perhaps, the court and defendant as well, by sharpening the issues in the case, shaping the examination of witnesses, and thus shortening the trial and assisting in a just determination. See Knighton v. Watkins, 616 F.2d 795, 799 (5th Cir. 1980).
For these reasons, the judgment of dismissal is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.