John REID, Appellant, v. Phillip CHARNEY and Howard Lee, Appellees

United States Court of Appeals for the Sixth Circuit1956-06-25No. No. 12826

235 F.2d 47

Summary · law.co

Holding. The district court did not err in dismissing Reid's civil rights complaint based on his refusal to proceed to trial, despite the unavailability of volunteer counsel and the denial of government-funded subpoenas for witnesses. The judgment is affirmed.

John Reid, an inmate at Southern Michigan State Prison, filed a civil rights action for damages against two law enforcement officers under federal civil rights statutes. The district court allowed Reid to proceed without paying court fees due to his indigency and made substantial efforts to locate volunteer counsel for him, including granting a two-month continuance. When the rescheduled trial date arrived, Reid was present in court but refused to proceed, leading the district court to dismiss the case while indicating it would reconsider if Reid obtained counsel within thirty days.

On appeal, Reid challenged the dismissal, implicitly arguing that the court's inability to secure counsel and refusal to subpoena witnesses at government expense violated his rights. The appellate court rejected these contentions. It distinguished civil cases from criminal proceedings, noting that while criminal courts must assign counsel, civil courts have only the power to request volunteer attorneys under the relevant statute. The court found no abuse of discretion in refusing Reid's request for government-funded witness subpoenas, observing that even criminal courts exercise discretion over such requests. The trial court's dismissal was therefore proper.

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Key issues

Whether a civil litigant has a right to appointed counsel at government expense
Whether a trial court abused its discretion in denying a request for government-funded witness subpoenas in a civil action
Dismissal for failure to prosecute when litigant refuses to proceed at trial

Procedural posture

Reid appealed the district court's dismissal of his civil rights complaint for failure to proceed to trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

Appellant’s action for damages under the Civil Rights Act, 42 U.S.C.A. §§ 1981-1983, was originally filed against ten defendants. Upon motion, the complaint was dismissed as to eight of them and no appeal was taken from that order. Subsequently, the complaint was dismissed as to the two remaining defendants because of the appellant’s failure to proceed with trial, and it is from that dismissal that this appeal was taken.

The appellant is an inmate of the Southern Michigan State Prison. The complaint, prepared by the appellant himself, although vague and repetitious, in the opinion of the district court stated a cause of action against the appellees, two Michigan law enforcement officers. The court granted the appellant leave to proceed in forma pauperis and thereafter made repeated efforts to secure trial counsel for him. These efforts were unsuccessful, as were the appellant’s own efforts to secure counsel in his own behalf, although he was given opportunity to do so by the district judge.

The trial court granted the appellant a continuance of two months from the original trial date to give him a further opportunity to seek legal assistance. Upon the rescheduled trial date, the appellant, who was in court, refused to proceed. The district court then dismissed the case, but in doing so made it clear that if the appellant obtained counsel within thirty days, the court would consider reopening the case.

In contrast to a criminal proceeding, in which the court has a duty to “assign” counsel to represent a defendant in accordance with his Constitutional right, Rule 44, Federal Rules of Criminal Procedure, 18 U.S.C.A., the court in a civil case has the statutory power only to “request an attorney to represent” a person unable to employ counsel. Title 28 U.S.C.A. § 1915(d). While the refusal of local counsel to serve was regrettable, the court could hardly do more than was done under the circumstances.

In addition to requesting the services of uncompensated counsel, the appellant also requested that eight named persons be subpoenaed as witnesses.- at government expense, The trial .court refused this request. Even in a criminal case, where it is the district court’s clear duty to order that subpoenas be issued upon the request of an indigent defendant at the cost of the government, that duty is not absolute. Rule 17(b), Federal Rules of Criminal Procedure. The, court’s action upon such requests is generally not reviewable in the absence of an abuse of discretion. See Goldsby v. United States, 1895, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343; Austin v. United States, 9 Cir., 1927, 19 F.2d 127; United States v. Kinzer, D.C.D.C.1951, 98 F. Supp. 6. .Certainly no less discretion was allowable to the district court in this civil action, whatever the court’s power may have been. Cf. Adkins v. E. I. Du Pont De Nemours & Co., 1947, 335 U.S. 331, 337, 69 S.Ct. 85, 93 L.Ed. 43.

The trial court was not in error, and its order dismissing the complaint in this case is hereby affirmed. •