                                     UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-6136


JUSTIN MARSHALL EVANS,

            Plaintiff – Appellant,

v.

JOHN KUPLINSKI, Superintendent; MICHAEL EAVES, Major Director of
Security; MAJOR FRANK HOUTTE, Major Director of Medical; LT. CHARLES
CAIN, Shift Supervisor; LT. KENNETH L. CLEVENGER, Shift Supervisor; CPL.
CLYDE A. THOMAS, Officer; LT. LOUIS E. RICHARDSON, Shift Supervisor,

            Defendants – Appellees,

and

SGT. MELVIN D. CARTER, Assistant Shift Supervisor,

            Defendant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:15-cv-00179-MSD-LRL)


Argued: October 26, 2017                                 Decided: November 17, 2017


Before DUNCAN, THACKER, Circuit Judges, and Max O. COGBURN, Jr., District
Judge for the United States District Court for the Western District of North Carolina,
sitting by designation.
Vacated and remanded by unpublished opinion. Judge Duncan wrote the opinion, in
which Judge Thacker and Judge Cogburn joined.


ARGUED: Toby Jay Heytens, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Jeff W. Rosen, PENDER & COWARD, P.C.,
Virginia Beach, Virginia, for Appellees. ON BRIEF: Lisa Ehrich, PENDER &
COWARD, P.C., Virginia Beach, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                            2
DUNCAN, Circuit Judge:

       Plaintiff-Appellant Justin Evans argues that the district court abused its discretion

in denying his multiple requests for counsel before dismissing his pro se civil rights

complaint against seven officials of the Virginia Peninsula Regional Jail (“VPRJ”) for

violations of his First and Eighth Amendment rights. For the reasons that follow, we find

that the record presents the rare exceptional circumstances that render the district court’s

denial of Evans’s requests for counsel an abuse of discretion. Accordingly, we vacate the

district court’s dismissal of Evans’s complaint and remand for proceedings not

inconsistent with this opinion.



                                             I.

       Evans has a long history of mental illness. 1 He has been prescribed medication

and has been under the treatment of psychiatrists and psychologists since age seven. He

was diagnosed with bipolar disorder at age twelve. He has a history of drug addiction

and was hospitalized and committed for mental health treatment before his October 2009

incarceration.

       Evans was arrested on October 13, 2009, and spent most of the time between that

date and fall 2014 incarcerated at VPRJ, except for multiple commitments to Central

State Hospital, a psychiatric facility. During this period, Evans’s commitments to Central


       1
          Because we review the district court’s order dismissing the case, we recite the
facts as alleged in the complaint.


                                             3
State Hospital ranged in length from approximately one week to approximately two

months. In fall 2014, he was committed to Central State Hospital and remained there

through at least January 19, 2016. 2 At all relevant times, Evans was a pretrial detainee.

       Evans’s commitments to Central State Hospital prior to fall 2014 followed his

frequent disruptive behaviors and acts of self-harm at VPRJ. Between October 2009 and

December 2013, Evans required forty-one outpatient trips to the emergency room, seven

hospital admissions, and seven commitments to Central State Hospital. During that time,

VPRJ recorded forty-two instances of self-mutilation and at least thirty incidents of

swallowing foreign objects including batteries, pens, pencils, and various plastic and

paper items.   The record does not clearly establish the basis for Evans’s fall 2014

commitment to Central State Hospital, but it “was not due to an incident at [VPRJ].” J.A.

74. Evans was committed for treatment pursuant to a court order “based upon Virginia

Code Section 19.2-169.2, Treatment of an Incompetent Defendant.” J.A. 161.

       Evans filed a pro se complaint under 42 U.S.C. § 1983 against seven VPRJ

officials on March 23, 2015, while he was committed to Central State Hospital. His

complaint alleges that he suffered various forms of abuse while at VPRJ. First, he alleges

that he was violently assaulted by VPRJ officials on at least four occasions.            He

complains of incidents in March 2010, June 2010, December 2010, and on an unspecified

date. Second, he complains about the conditions of his confinement, and describes


       2
         Evans’s fall 2014 commitment occurred in October or November, but the exact
date of commitment is immaterial to our resolution of this case.


                                             4
specific events that occurred in September 2010, between December 2010 and November

2011, in November 2012, and on multiple other dates. Third, he alleges that various

defendants restricted his access to the courts while he was confined at VPRJ because he

was prevented from filing a complaint for eight to ten months in 2011, that when he

eventually prepared and signed a complaint it was never filed, that he was repeatedly told

VPRJ had run out of the forms used to file a § 1983 action, and that he was denied the

ability to conduct legal research and review legal documents.

          Evans remained committed to Central State Hospital for the entirety of the

litigation below. Because Central State Hospital is a psychiatric facility, it is not well-

equipped to support a patient’s legal research. At Central State Hospital, Evans has

limited access to writing instruments, a typewriter, and a computer.          Central State

Hospital does not have a law library and has informed Evans that it cannot provide access

to one.

          Five defendants moved for summary judgment and the remaining two defendants

moved to dismiss the complaint prior to discovery. Evans responded with a motion

asking for appointed counsel, which the district court denied because Evans failed to set

forth any exceptional circumstances demonstrating the need for an attorney. Evans then

drafted a “Motion for Subpoena(s) Duces Tecum,” seeking his inmate file from VPRJ.

J.A. 130. The district court did not initially receive a copy of the motion, subsequently

dismissed it as moot, and later denied Evans’s two additional motions for subpoenas.

          Evans filed a second motion for counsel, explaining that he had no access to a law

library at Central State Hospital but that he needed to conduct legal research to respond to

                                              5
the defendants’ motions. Evans later filed a third motion for counsel. The district court

denied Evans’s second and third motions for counsel in a single order.

       Evans then responded to the motions for summary judgment and to dismiss, and

explained that the superintendent of VPRJ had admitted in a state court proceeding that

he had denied Evans access to the law library in order to prevent Evans from suing VPRJ.

Evans also wrote that he was “informed” of “legal precedents” stating “that if the

Defendants prevented plaintiff from filing a lawsuit, or if plaintiff’s access to courts and

the Law was denied by or interrfered [sic] with by Defendants, . . . the time bar Statute of

limitations referred to by Defendants[’] Attorney is null and void,” but explained that he

could not research the issue at Central State Hospital. J.A. 199.

       The district court granted the defendants’ motions and dismissed the complaint in

a Dismissal Order dated January 19, 2016. The Dismissal Order did not address the

tolling issue that Evans identified, but concluded that Evans’s claims were generally

barred by the statute of limitations and that the defendants were entitled to summary

judgment on all non-time barred claims. This appeal followed.



                                                 II.

       We review the district court’s denial of Evans’s requests for counsel for abuse of

discretion. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other

grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989).

       A pro se prisoner does not have a general right to counsel in a § 1983 action. Id.

However, “[t]he court may request an attorney to represent any person unable to afford

                                             6
counsel.” 28 U.S.C. § 1915(e). The decision to appoint counsel is committed to the

district court’s discretion, “but it is an abuse of discretion to decline to appoint counsel

where the case of an indigent plaintiff presents exceptional circumstances.” Whisenant,

739 F.2d at 163. In particular, the existence of exceptional circumstances turns on (1) the

type and complexity of the case and (2) the capabilities of the individual bringing it. Id.

Counsel should be requested “[i]f it is apparent . . . that a pro se litigant has a colorable

claim but lacks the capacity to present it.” Id.

       For the reasons that follow, we find that exceptional circumstances exist here

because (1) Evans’s claims implicate a complex but colorable tolling issue and (2) Evans

suffers from severe mental illness and was committed to a psychiatric facility without

access to research materials for the entirety of the litigation below. Accordingly, we find

that the district court abused its discretion by denying Evans’s requests for counsel.



                                             A.

       We first examine the characteristics of Evans’s claims, which suggest that this

case presents exceptional circumstances because (1) Evans’s § 1983 action implicates

two legally complex tolling arguments and (2) Appellees conceded at oral argument that

presentation of the tolling arguments below could have helped Evans. Taken together,

these characteristics suggest that the “type and complexity of the case” present

exceptional circumstances. See id. (quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir.

1982)).



                                              7
       First, Evans’s claims implicate two complex tolling arguments. The district court

ruled that most of Evans’s claims under § 1983 were time-barred. Because there is no

explicit statute of limitations for claims brought under § 1983, courts borrow the state law

personal injury statute of limitations, Nasim v. Warden, Md. House of Corr., 64 F.3d 951,

955 (4th Cir. 1995) (citing Wilson v. Garcia, 471 U.S. 261, 266–69 (1985)), and tolling

rules, Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478, 483–84

(1980). Accordingly, Evans’s claims are subject to a two-year statute of limitations, see

Va. Code Ann. § 8.01-243(A), which may be tolled for any period during which Evans

was incapacitated or a defendant directly or indirectly prevented him from filing suit, see

id. §§ 8.01-229(A)(2)(b), 8.01-229(D). While Evans informed the district court that he

believed that the statute of limitations might be tolled in his case, he could not identify

the applicable statutes or explain why tolling was appropriate. The defendants did not

discuss tolling in their filings below, and the district court did not address tolling in ruling

on the timeliness of Evans’s complaint.

       Without a lawyer, and without access to a law library during the entire pendency

of the litigation below, Evans was unable to argue that claims that would ordinarily be

time-barred were in fact timely because of his incapacity or the defendants’ obstruction.

The tolling issue is complex because it is an issue a non-lawyer is unlikely to understand

and requires substantial research to determine which jurisdiction’s rules govern, which

particular rules are implicated, and how those rules apply. Moreover, it is clear that

Evans’s tolling argument is colorable because Appellees conceded at oral argument that

the tolling argument, if presented to the district court, “could have been helpful” to

                                               8
Evans. See Oral Argument at 19:30–19:35. Accordingly, we find that the characteristics

of Evans’s claims suggest that this case presents exceptional circumstances.



                                             B.

       We next consider Evans’s characteristics and capabilities, which further suggest

that this case presents exceptional circumstances. Evans could not present his tolling

argument because (1) he is severely mentally ill and his conduct at VPRJ was, to borrow

the term Appellees used at oral argument, “extraordinary,” and (2) he was confined for

the entirety of the litigation below to a psychiatric facility that did not allow him to

conduct legal research.

       First, Evans suffers from severe mental illness. He has suffered from diagnosed

mental illness since childhood. He is bipolar, has long been under the care of medical

professionals and prescribed medication, and has struggled with drug addiction. At oral

argument, Appellees conceded that Evans’s conduct since his arrival at VPRJ has been

“extraordinary,” a characterization supported by the record. Since October 2009, VPRJ

documented forty-two instances of self-mutilation, at least thirty instances of swallowing

foreign objects, forty-one outpatient trips to the emergency room, seven hospital

admissions, and seven commitments to Central State Hospital. We agree with Appellees’

statement at oral argument that Evans’s conduct renders this “an extraordinary case,” that

“this was not the normal inmate,” and that Evans was “extraordinary in his behavior.”

See Oral Argument at 23:50–24:20. Accordingly, we believe that Evans’s behavior and

illness support a finding that this case presents exceptional circumstances.

                                             9
       Second, Evans was committed to Central State Hospital for the entirety of the

litigation below and was therefore unable to conduct legal research at any point in the

proceedings. At Central State Hospital, Evans could not access a law library to research

his complex tolling arguments and had only limited access to a typewriter or pen and

paper. We imply no criticism of Central State Hospital, which is a psychiatric facility

and which reasonably prioritized Evans’s safety. But Evans’s complete inability to

conduct legal research at any point during the proceedings before the district court

supports a conclusion that he was unable to pursue his claims. See Whisenant, 739 F.2d

at 163. Accordingly, we find that Evans’s characteristics and capabilities also suggest

that this case presents exceptional circumstances.

       Thus, both the type and complexity of Evans’s claims and Evans’s personal

characteristics and capabilities present exceptional circumstances. We therefore conclude

that the district court abused its discretion in denying Evans’s requests for counsel.



                                             C.

       Having found that the district court abused its discretion in declining to request

that counsel be appointed to represent Evans, we must fashion a remedy. We conclude

that the district court’s denial of Evans’s requests for counsel tainted the dismissal of his

complaint. Accordingly, we vacate the dismissal of his complaint and remand with

instructions to request that counsel be appointed to represent Evans.



                                             III.

                                             10
For the foregoing reasons, the judgment of the district court is

                                                      VACATED AND REMANDED
                                                          WITH INSTRUCTIONS.




                                      11
