                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                         FOR THE ELEVENTH CIRCUIT
                           ________________________                  U.S. Court of Appeals

                                 No. 09-12601                           Eleventh Circuit
                           ________________________
                                                                        March 1, 2013
                    D.C. Docket No. 06-00008-CV-3-RV-MD
                                                                        John Ley, Clerk
RUSSELL T. NEAL,

                                                                 Plaintiff-Appellant,

                                       versus

OFFICER CASSIDAY, ET AL.,

                                                              Defendants-Appellees.
                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________
                               (March 1, 2013)

Before TJOFLAT, HULL, and KRAVITCH, Circuit Judges.

PER CURIAM:

      This is a pro se civil rights case brought under 42 U.S.C. § 1983 by Russell

T. Neal, an inmate in the Florida prison system, against four correctional officers

for the infringement of the Eighth and Fourteenth Amendments right to be free
from cruel and unusual punishment. Neal alleges that the officers beat him and

cuffed his hands behind his back despite a medical pass indicating that due to torn

rotator cuffs in his shoulders, they should be cuffed in front of his body. Neal

moved the district court for the appointment of counsel on five occasions as the

case progressed toward trial. His motions were denied. At trial, the jury returned

verdicts for the defendants. Neal appeals the judgment entered pursuant to the

jury’s verdicts, arguing that the court abused its discretion in refusing to appoint

counsel.

      Although there is no constitutional right to counsel in civil cases, Congress

has given district courts discretion under 28 U.S.C. § 1915(e)(1) to appoint counsel

for civil litigants proceeding in forma pauperis when exceptional circumstances

warrant such appointment. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999).

      In deciding whether to grant a request for counsel from an indigent prison

inmate, a district court should answer two threshold questions. First, has the

movant looked for counsel? See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.

1982). Second, does the plaintiff’s case have merit? Poole v. Lambert, 819 F.2d

1025, 1028 (11th Cir. 1987). In determining whether “exceptional circumstances”

warrant appointment of counsel, the district court may consider various factors,

including: (1) the type and complexity of the case, (2) whether the indigent is

capable of adequately presenting his case, (3) whether the indigent is in a position
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to adequately investigate the case, and (4) whether the evidence will consist in

large part of conflicting testimony so as to require skill in the presentation of

evidence and in cross-examination. Ulmer, 691 F.2d at 213 (cited with approval in

Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990)). Because the issue is

whether counsel should have been appointed before trial, we are precluded from

hindsight reevaluation of whether appointment was necessary based on Neal’s

performance at trial. See Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982).

      We conclude that Neal satisfied the threshold requirements for appointment

of counsel for his jury trial and, further, that he has shown exceptional

circumstances that warrant appointment. Although his legal claims were neither

novel nor unusually complex, his pre-existing partial blindness and his transfer to

different prisons as the case progressed toward trial significantly undermined his

ability to prepare for trial. Due to the prison system’s inter-institution

communication–prohibition rules, he was unable to find addresses for almost all

his witnesses. Locating the witnesses was critical because the case consisted

mainly of conflicting testimony about the handcuffing and beating.

      We therefore vacate the district court’s judgment in favor of the defendants,

and remand the case with instructions that the district court grant Neal’s motion for

a new trial and appoint counsel to represent him at trial.

      VACATED and REMANDED.
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