Opinion
CIVIL ACTION NO. 03-1420, SECTION "C" (1)
November 7, 2003
ORDER
Before the Court are Plaintiffs Motion Seeking To Appeal Ruling of the Magistrate Judge Denying Petitioner's Request For Appointment Of Counsel (Rec. Doc. 11) and Motion Seeking the Right to Jury Trial (Rec. Doc. 12), and Defendants' opposition thereto (Rec. Doc. 15). For the reasons set forth below, Plaintiff's Motions are GRANTED.
Mr. Hamden ("Plaintiff") filed this action pursuant to 42 U.S.C. § 1983, alleging a violation by Sheriff Charles Foti and other New Orleans Parish Prison officials ("Defendants") of his, and similarly situated Muslims', First Amendment right to the free exercise of the Islamic faith, as incorporated through the Fourteenth Amendment. Specifically, he seeks declaratory, injunctive and monetary relief in response to four claims: (1) obstruction of daily prayers, Jumu'ah; (2) lack of accommodation of dietary restrictions during the Muslim holy month of Ramadan; (3) the prevalence and imposition of the Christian faith by the Orleans Parish Prison custodians; and (4) a lack of provision of the Holy Kor'an, despite the ready availability of the Christian Holy Bible. (See Rec. Doc. 2). The matter was assigned to the Magistrate for resolution until Plaintiff notified the Court that he does not consent to that referral, which was subsequently revoked. (Rec. Doc. 7, 8).
Prior to the revocation of the referral, Plaintiff sought the appointment of counsel to represent him in this civil rights action. The matter was brought before the Magistrate who denied Plaintiff's request, ruling that this was not an "exceptional circumstance" under Fifth Circuit precedent. Rec. Doc. 7: see Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997) (requiring exceptional circumstances for appointment of counsel in civil actions). The Fifth Circuit has held that appointment of counsel in civil rights actions is reserved for those cases where there is a confluence of complexity of the issues and the ability of the party to bring the action. Jackson v. Dallas Police Dep't, 811 F.2d 260, 261 (5th Cir. 1986).
Plaintiffs case addresses the accommodation provided by the New Orleans Parish Prison to its inmates, including provision of adequate Jumu'ah prayer services and adequate food services for inmates honoring the Islamic fasting requirements during Ramadan. Therefore this case raises issues "that have been briefed and analyzed in numerous courts," including in the Fifth Circuit. Id (citations omitted). See, e.g., O'Lone v. Shabazz, 482 U.S. 342 (1987) (discussing Muslim practice of daily prayer — Jumu'ah — in prison setting); Mumin v. Phelps, 857 F.2d 1055 (5th Cir. 1988) (discussing same); Makin v. Colorado Dep't of Corr., 183 F.3d 1205 (10th Cir. 1999) (requiring prison officials to accommodate fasting schedules of Muslim prisoners during holy month of Ramadan); Stewart v. Thomas, 1999 U.S. App. LEXIS 7236 (10th Cir. 1999) (discussing same). The Court notes, however, that these cases have not been decided uniformly, in part because of the difference between the issues each raised: generally, courts have been more lenient to penal concerns where the Jumu'ah services were at issue, as opposed to where provision of a flexible diet during a month-long fasting period were before the courts.
The Court agrees with Defendants that for a pro se plaintiff, the quality of the self-representation appears better than the norm. However, the Plaintiff's legal acumen in prosecuting his case is just one of the touchstones in determining the appropriateness of appointing counsel. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).Ulmer requires the trial court to consider (1) the type and complexity of the case; (2) the capabilities of the litigant; (3) the indigent's ability to investigate the case; and (4) the likelihood that conflicting testimony will require skillful litigation tactics. Id. This case involves the free exercise of religion in a jail setting, which potentially impacts far more inmates than just the Plaintiff. As already noted, the prior case law is not entirely consistent. Finally, Plaintiff's access to the necessary legal research is limited in light of his custodial status. For all these reasons, appointment of counsel in the instant matter will be granted.
The Court notes that where a plaintiff is pro se, the Court will construe his pleadings liberally, in order to balance any inequities presented by virtue of his unrepresented status. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 2003). However, a liberal reading of the pleadings does not always assist the "sharpening of the issues in the case, shaping the examination of witnesses, [or shorten] the trial and assist in a just determination." Ulmer, 691 F.2d at 213. Moreover, Plaintiff has not briefed any legal issues as of yet, so the extent of his abilities is unknown.
Plaintiff also seeks to exercise his right to have a jury trial. The Federal Rules of Civil Procedure require that a plaintiff notify his adversaries within ten (10) days of his demand for a jury trial on any triable issues. Fed.R.Civ.P. 38(b). Defendants object to granting Plaintiff's request for a jury trial, noting that his action has been before the Court in excess of five months. However, the Magistrate granted Plaintiff until September 5, 2003 to file his demand for a jury trial, which demand was timely made in compliance with that order. (Rec. Doc. 7). Because of Plaintiff's compliance on this issue, and finding no prejudice to Defendants by granting this request, the Court grants Plaintiffs demand for a jury trial.
For the foregoing reasons,
IT IS ORDERED that the ruling denying Plaintiffs request for appointment of counsel is hereby REVERSED;
IT IS FURTHER ORDERED that the Plaintiffs Motion Seeking To Appeal Ruling of the Magistrate Judge Denying Petitioner's Request For Appointment Of Counsel is GRANTED;
IT IS FURTHER ORDERED that Loyola Law Clinic, c/o Bill Quigley, Esq., 7214 St. Charles Avenue, New Orleans, LA 70118, is HEREBY APPOINTED to serve as counsel to Plaintiff;
IT IS FURTHER ORDERED that Plaintiff's Motion Seeking the Right to Jury Trial is GRANTED.