Payton v. Inspire Brands et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JONATHAN PAYTON
VERSUS
INSPIRE BRANDS, ET AL.
*
*
*
CIVIL ACTION
NO. 25-1480
SECTION “R” (2)
ORDER TO SHOW CAUSE AND
ORDER AND REASONS DENYING APPOINTMENT OF COUNSEL
Before me is Plaintiff Jonathan Payton’s Motion to Appoint Counsel. ECF No. 12.
I. 	BACKGROUND
Plaintiff Jonathan Payton filed a complaint against Defendants Inspire Brands and Buffalo
Wild Wings purporting to assert “official capacity” claims against both Defendants based on
alleged violation of 18 U.S.C. § 241. ECF No. 1 at 2; ECF No. 1-1, Section VI. He alleges that a
Buffalo Wild Wings employee accosted, harassed, and assaulted him in retaliation for reporting
her to management for poor customer service, that the employee spread false claims throughout
the restaurant, and that the employee gathered other patrons to assault him. 	ECF No. 1 at 4.
Plaintiff alleges management “witnessed the entire incident.” Id. 	Plaintiff’s claims thus appear
to arise from his dissatisfaction with treatment from staff at a local restaurant. Although Plaintiff
alleges that he was pushed out of the restaurant, he stated that he did not sustain injury. Id. at 5.
This Court granted Plaintiff’s application to proceed in forma pauperis but directed that
issuance of summons be withheld pending completion of the statutorily mandated frivolous
review. ECF No. 7. In that same Order, the undersigned directed that Plaintiff show cause, on or
before October 20, 2025, why his complaint should not be summarily dismissed as frivolous and
for lack of subject matter jurisdiction. Id. at 5. Plaintiff failed to comply with that Order. Instead,
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it appears that Plaintiff moved to another location and failed to notify the Clerk of Court of his
new address until December 4, 2025. ECF Nos. 9, 10, 11.
In Plaintiff’s current motion for appointment of counsel, Plaintiff simply asserts that he has
limited financial resources and that counsel will help with filings and motions. ECF No. 12.
II. 	APPLICABLE LAW
A. Appointment of Counsel
A litigant has no constitutional right to a court-appointed attorney in a civil case.1 A court
may, however, appoint counsel “if doing so would advance the proper administration of justice.”2
Appointment of counsel under § 1915(e)(1) should not occur as a matter of course or
ordinary practice.3 Under 28 U.S.C. § 1915(e)(1), a court has the authority to request an attorney
to represent a person unable to afford counsel. To request counsel under § 1915(e)(1), the plaintiff
must establish the existence of “exceptional circumstances.”4 	Although the Fifth Circuit has
declined to articulate a comprehensive definition of “exceptional circumstances,” 5 it has identified
various factors that a court should consider in determining whether exceptional circumstances
warrant the appointment of counsel:
(1) the type and complexity of the case;
(2) whether the indigent plaintiff is capable of adequately presenting the case;
(3) whether the indigent plaintiff is in a position to investigate and adequately
prepare the case;
(4) whether the evidence will consist in large part of conflicting testimony so as to
require skill in presentation of evidence and in cross-examination; and
1 See F.T.C. v. Assail, Inc., 410 F.3d 256, 267 (5th Cir. 2005) (“The Sixth Amendment right to counsel is inapplicable
in civil cases.” (citations omitted)).
2 Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989).
3 See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007) (citation omitted); see also Hadd v. LSG-Sky Chefs, 272
F.3d 298, 301 (5th Cir. 2001) (citing Castro Romero v. Becken, 256 F.3d 349, 353–54 (5th Cir. 2001) (holding that
there is no automatic right to appointment of counsel in civil rights cases)); Naranjo v. Thompson, 809 F.3d 793, 799
(5th Cir. 2015) (citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982)).
4 See Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982); Ulmer, 691 F.2d at 213.
5 Ulmer, 691 F.2d at 213 (quoting Branch, 686 F.2d at 266).
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the likelihood that appointment will benefit the petitioner, the court, and the
defendants by shortening the trial and assisting in just determination.6
In addition, the court should consider the extent of a plaintiff's attempts to secure private counsel
independently.7 Thus, even when demonstrably indigent, a plaintiff asserting civil claims for
damages is not entitled to appointed counsel as a matter of right.8
Before addressing whether exceptional circumstances exist for purposes of § 1915(e)(1),
the court should generally screen the complaint under 28 U.S.C. § 1915(e)(2),9 which considers
whether it is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted;
or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). 	This process requires the court to assess whether the plaintiff’s claims
meet a threshold level of plausibility, which “embraces not only the inarguable legal conclusion,
but also the fanciful factual allegation.”10 Thus, an indigent plaintiff must first demonstrate that
the asserted claim meets “a threshold level of plausibility” and then show “exceptional
circumstances” before the court considers requesting appointed counsel.11
In addition to § 1915(e)(1), the court has extra-statutory, inherent authority to compel an
attorney to represent a party when exceptional circumstances exist and efforts to secure non-
6 Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992); Ulmer, 691 F.2d at 213.
7 Naranjo, 809 F.3d at 799 (citing Jackson, 864 F.2d at 1242).
8 Thompson v. Tex. Dep't of Crim. Just., 67 F.4th 275, 283 (5th Cir. 2023) (quoting Naranjo, 809 F.3d at 799 (citing
Ulmer, 691 F.2d at 212)).
9 Cf. April 22, 2014 Resolution of the En Banc Court (permanently adopted on October 5, 2016), Section 3(d). The
screening review process applies to in forma pauperis cases filed by both prisoners and non-prisoners. See Newsome
v. E.E.O.C., 301 F.3d 227, 231-33 (5th Cir. 2002) (dismissing non-prisoner case under § 1915(e)(2)(B)(i) and (ii) for
frivolity and failure to state a claim); Malone v. La Dep't of Safety & Corr., No. 17-CV-1025, 2017 WL 4106244, at
*1 (W.D. La. Aug. 25, 2017) (finding that §1915(e)(2) applies equally to prisoners and non-prisoners).
10 Naranjo, 809 F.3d at 799 (citations omitted); Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989) (stating that a
claim is frivolous if it “lacks an arguable basis either in law or in fact,” and lacks an arguable basis in fact when it
describes “fantastic or delusional scenarios”); see also Howard v. Langston, 544 F. App'x 427, 427 (5th Cir. 2013)
(“A court may dismiss a claim as factually frivolous where the facts alleged are ‘clearly baseless,’ such as when the
allegations are fanciful, fantastic, or delusional.” (citing Denton v. Hernandez, 504 U.S. 25, 32–33 (1992))).
11 Naranjo, 809 F.3d at 799.
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compulsory representation are unsuccessful.12 	The power to compel appointment of counsel,
however, is a power of last resort and is not to be invoked unless all other options have been
exhausted.13 	Before ordering mandatory or compelled representation, the court may consider
additional circumstances, including:
(1) an attorney’s assessment that the claims are meritless;
(2) whether taking the case could subject the attorney to discipline;
(3) plaintiff’s antagonistic behavior toward previous counsel;
(4) whether the attorney has good cause to decline; and
(5) any change in circumstances.14
III. 	ANALYSIS
A. 	Failure to Comply With Show Cause Order
Plaintiff failed to respond to the Court’s Order requiring him to show cause before October
20, 2025, why his complaint should not be dismissed. ECF No. 7. Because that Order was issued
before Plaintiff notified the Clerk of Court of his change of address, the undersigned will assume
Plaintiff did not receive a copy of that Order. Plaintiff, however, is obligated to notify the Clerk
of Court of any change of address promptly, and in signing his Complaint, acknowledged that his
failure to do so may result in the dismissal of his case.
As previously explained, 18 U.S.C. § 241 does not provide Plaintiff with a private cause
of action that would support the Court’s exercise of federal question jurisdiction,15 and Plaintiff
12 Id. at 804.
13 Id.; see also Byrd v. Lindsey, 736 F. App’x 465, 468 (5th Cir. 2018) (re-affirming inherent authority to appoint
counsel).
14 Naranjo, 809 F.3d at 805-06.
15 Criminal charges cannot be brought by private individuals as the Executive Branch has absolute discretion to
decide whether to investigate or prosecute a case. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); United States
v. Nixon, 418 U.S. 683, 693 (1974) (citations omitted); see also Lefebure v. D’Aquilla, 15 F.4th 650, 654 (5th Cir.
2021). And the cited federal criminal statute does not provide a private cause of action. Gill v. Texas, 153 F. App’x
261, 262-63 (5th Cir. 2005) (“[Sections] 241 and 242 do not provide a basis for civil liability. . . . Therefore, the
district court did not abuse its discretion when it dismissed these claims as legally frivolous.” (citing Hanna v. Home
Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960); Ali v. Shabazz, 8 F.3d 22 (5th Cir. 1993) (unpublished); Harper v.
Showers, 174 F.3d 716, 718 (5th Cir. 1999))).
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seeks less that the statutory minimum necessary to establish diversity jurisdiction.16 	Despite
Plaintiff’s failure to timely respond to the show cause, the undersigned will provide Plaintiff with
another opportunity to respond, on or before February 25, 2026. Failure to timely respond may
result in a recommendation that this case be dismissed.
B. Appointment of Counsel
Plaintiff does not address whatsoever, much less establish, the exceptional circumstances
necessary to justify appointment of counsel under § 1915(e)(1). “Every civil lawsuit is in some
ways complex, but not every lawsuit warrants court appointed counsel. It is only those
extraordinarily complex cases that require such extraordinary measures.”17 	This case does not
appear to be particularly complex, and Plaintiff has not provided any basis to conclude that he is
incapable of investigating, preparing or adequately presenting the case. 	Further, he has not
identified any efforts he has undertaken to secure private counsel.
IV. 	CONCLUSION
On its face, Plaintiff’s Complaint fails to state a cognizable claim and lacks any basis for
subject matter jurisdiction, subjecting it to summary dismissal under § 1915(e)(2). 	Moreover,
Plaintiff has failed to establish exceptional circumstances necessary to justify appointed counsel
under § 1915(e)(1) or identified any efforts taken to secure private counsel.
Accordingly,
IT IS ORDERED that, for the reasons set forth above and more fully in the Order and
Reasons dated September 25, 2025 (ECF No. 7), on or before Wednesday, February 25, 2026,
16 ECF No. 1 § V, at 5.
17 LaBranche v. Nestor I LLC, No. 18-8399, 2019 WL 3891555, at *3 (E.D. La. Aug. 19, 2019) (Morgan, J.) (citing
Hudson v. Univ. of Tex. Med. Branch, 441 F. App'x 291, 293 (5th Cir. 2011)).
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Plaintiff Jonathan Payton SHOW CAUSE why his Complaint should not be summarily dismissed
as frivolous and for lack of subject matter jurisdiction;
IT IS FURTHER ORDERED that, in response to this show cause order, Plaintiff shall file
a response containing a written statement setting forth the specific facts upon which she relies to
establish a basis for federal subject matter jurisdiction over her claim. PLAINTIFF’S FAILURE
TO 	RESPOND 	IN 	WRITING 	AS 	DIRECTED 	HEREIN 	MAY 	RESULT 	IN 	THE
DISMISSAL OF HIS COMPLAINT.
IT IS FURTHER ORDERED that there will be no oral hearing on Wednesday, February
25, 2026, but the matter will be taken under advisement on the written filings on that date.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel is DENIED.
New Orleans, Louisiana, this ________ day of January, 2026.
___________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
9th
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