Opinion · Court of Appeals for the Third Circuit
Jackey Don Watson v. Thomas Moss and John C. Clobes, Individually, Third District Police Station
619 F.2d 775
- Type
- Opinion
- Court
- Court of Appeals for the Third Circuit
- Jurisdiction
- Federal
- Date
- 1980-04-24
- Topic
- general
alleged ineffective assistance of appointed counsel in a civil case is not a basis for new trial | "[n]o constitutional or statutory right to effective assistance of counsel in a civil case"
Citator
- Cited by
- 35 opinions
WATSON v. MOSS,619 F.2d 775(8th Cir. 1980)
JACKEY DON WATSON, APPELLANT, v. THOMAS MOSS AND JOHN C. CLOBES,
INDIVIDUALLY, THIRD DISTRICT POLICE STATION, APPELLEES.
No. 79-1725.
United States Court of Appeals, Eighth Circuit.
Submitted April 18, 1980.
Decided April 24, 1980.
John J. FitzGibbon, Associate City Counselor, St. Louis, Mo., for appellees.
Before STEPHENSON, Circuit Judge, KUNZIG,fn*Court of Claims Judge, and McMILLIAN, Circuit Judge.
[2] In this case an application to proceed in forma pauperis was granted and counsel was provided for Watson pursuant to28 U.S.C. § 1915(d), which permits the court in a civil case to "request an attorney to represent any such person [who is] unable to employ counsel."
[3] Watson's argument is basically as follows. In criminal cases involving appointed counsel, the Sixth Amendment requires a defendant to have effective assistance of counsel, which is defined as "that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances."Reynolds v. Mabry,574 F.2d 978,979(8th Cir. 1978). Watson contends this should be extended to civil cases instituted under42 U.S.C. § 1983alleging violations of Fourteenth Amendment rights. Watson contends that if inadequacy of counsel is then demonstrated, plaintiff should be entitled to a new trial. We disagree.
[4] Initially, there is a substantial difference between the constitutional rights of an accused in a criminal proceeding, and those of a plaintiff in a civil action. The stringent standards of appointment and effective assistance of counsel mandated by the Sixth Amendment and Fed.R.Crim.P.44do not apply to civil proceedings.See United States v. Rogers,534 F.2d 1134(5th Cir.),cert. denied,429 U.S. 940,97 S.Ct. 355,50 L.Ed.2d 309(1976);Reid v. Charney,235 F.2d 47(6th Cir. 1956);Rhodesv. Houston,258 F. Supp. 546(D.Neb. 1966),aff'd,418 F.2d 1309(8th Cir. 1969),cert. denied,397 U.S. 1049,90 S.Ct. 1382,25 L.Ed.2d 662(1970). There is no constitutional or statutory right for an indigent to have counsel appointed in a civil case.Peterson v. Nadler,452 F.2d 754,757(8th Cir. 1971). It of course follows there is no constitutional or statutory right to effective assistance of counsel in a civil case.
[5] A second reason for denying Watson's claim is the desire to treat plaintiffs with court-appointed counsel and plaintiffs with privately obtained counsel equally. The Supreme Court has stated court-appointed and private counsel in criminal cases have the same duties, burdens, and responsibilities.Ferri v. Ackerman,444 U.S. 193,200,100 S. Ct. 402,407,62 L.Ed.2d 355(1979). A party with privately retained counsel does not have any right to a new trial in a civil suit because of inadequate counsel, but has as its remedy a suit against the attorney for malpractice. Appointed counsel are not immune from a suit for malpractice,see Ferri v. Ackerman, supra,100 S.Ct. at 409, so Watson's remedies are the same as any other civil rights plaintiff.
[6] Because we conclude there is no right to a new trial for alleged ineffective assistance of counsel appointed in a civil case pursuant to28 U.S.C. § 1915(d), we do not express an opinion as to the adequacy of Watson's counsel in the instant case.
[7] Affirmed.