As some you know, when I was a lawyer "IP" stood for "Intellectual Property." Now that I'm a magistrate judge in federal court, IP usually means "Inmate Petition."

The Eastern District of California, with full service courthouses in Sacramento and Fresno, has one of the heaviest inmate caseloads in the country. Last year, nearly 50 percent of our cases - 1,800- plus - were filed by prisoners residing in the many prisons located throughout the Sacramento and Central Valleys. More than 1,000 of the cases were civil rights cases filed under 42 U.S.C. ß 1983; the rest were writs of habeas corpus, typically reviewed on the papers. The handling of these cases, with the exception of dispositive orders and trials, is referred by local rule to magistrate judges like me.

In most civil rights cases, the inmate plaintiff files pro se. Ninety percent of the time, the plaintiff who survives summary judgment litigates the case pro se as well. In the last five years, anywhere from two to twenty of these pro se cases end up going to trial each year in our district. In a few cases, particularly those that go to trial, the judge deems appointment of counsel appropriate. Factors affecting whether appointment is warranted include merit, complexity, nature of trial evidence, and plaintiff's litigation skills. Unlike habeas cases, where attorneys are readily available, appointment of counsel in civil rights cases has been a different story.

I've looked for counsel now in nine cases since April 2003. (An unscientific survey suggests my colleagues are in the same ballpark, looking for counsel in two to three cases a year.) So how often have I succeeded? Exactly once. In that case, poised for settlement, the Civil Rights Clinic at King Hall School of Law accepted appointment and resolved the case quickly. In the eight other cases, the Clinic was fully booked and unable to accept appointment, and I have been otherwise unable to find counsel. In seven of these eight cases, three alleged denial of constitutionally adequate medical care, one excessive force and denial of care, two denial of free exercise of religion, and one failure to protect in violation of the Eighth Amendment. In the eighth case, challenging civil detention under California's Sexually Violent Predators Act, the Ninth Circuit has directed the appointment of counsel; so far, at least four attorneys have declined appointment. In light of the Ninth Circuit's direction, I'm still looking.

So why is it hard to find counsel in these cases? For one, federal courts have no authority to require that an attorney accept appointment as an inmate civil rights plaintiff's counsel. See 28 U.S.C. ß 1915. We can "request," as we've been doing.

Appointment, if accepted, comes without any advance payment of fees. Fees may only be recovered by the prevailing party following trial, which may mean following an appeal. If fees are recovered, they are subject to an hourly cap imposed in the Prison Litigation Reform Act (PLRA). See 42 U.S.C. ß 1997e. The court, however, is in a position to approve payment of some costs upon application, including fees for approved expert witnesses. All considered, though, it probably is most realistic for counsel to approach appointment with a pro bono mindset.

The timing of appointment also may give counsel pause. Typically, I wait to appoint counsel until an inmate has survived summary judgment, after discovery has closed; then I know there is a genuine dispute going to trial. Occasionally, I seek counsel before the summary judgment stage. In all cases, I look for counsel only after I have screened the complaint, as required by the PLRA, making an initial determination there are colorable claims and the inmate is not barred from proceeding. See 28 U.S.C. 1915A.

What with trying and so rarely succeeding, I've begun to ponder whether there are things I can do differently to encourage and support - if not prod - members of our local bar to volunteer for these cases when appointment of counsel is warranted. Some federal courts, such as the Northern District of Illinois, simply require members of their trial bar to be available for appointment in certain types of cases no more than once a year, subject to good cause exceptions. Our court has never considered such a rule, and I'd like to think we don't need one to obtain representation for the relatively few inmates' civil rights plaintiffs where appointment is called for. Rather, I presume enough local attorneys are motivated by an interest in civil rights law and constitutional issues and a willingness to assist the court, not to mention the opportunity for trial experience for less-experienced litigation attorneys and associates.

Recently, I've been encouraged by interest from members of the local Federal Bar Association and the Sacramento County Bar's Constitutional Law and Civil Rights Section. As one judge who expects to keep looking for counsel several times a year, I look forward to continuing dialogue with these local practitioners. I hope to learn whether there are reasonable conditions that would facilitate appointment, at what point in a case willing attorneys would prefer to be appointed, and whether other special procedures or scheduling approaches are desirable. If you have answers to these questions, or other thoughts, please feel free to let me know, or contact Jeffrey Schwarzschild (Constitutional Law and Civil Rights Section) at 916-443-6911 or Daniela Almeida (Federal Bar) at 916-325-5859. And if one of us should reach out to you in the future, I hope you'll take our call!

Kimberly J. Mueller has been a U.S. Magistrate Judge since March 28, 2003. Her prior public service included a stint on the Sacramento City Council from 1987 to 1992.

May / June 2006