NEELY, Justice:
Robert Gary Craigo and James M. Oxier are indigent prisoners. Each has brought a civil suit in his own name, and each has had little success in prosecuting his action. Although we have held that a convict may sue in his own name,
Craigo v. Marshall,
175 W.Va. 72, 331 S.E.2d 510 (1985), we have not detailed what aid the State of West Virginia must provide to indigent convicts to bring civil suits. Today we hold that indigent convicts enjoy the same right to legal aid as indigent freemen, but no more.
I
Mr. Craigo alleged in his petition for a writ of mandamus in this court that two Kanawha County circuit court judges have refused to docket his civil action pursuant to 42 U.S.C. § 1983 [1979] against the May- or of Charleston and “certain City of Charleston police officials”. Chief Judge A. Andrew MacQueen answered that he has reinstated Mr. Craigo’s action to the active docket of his court. Accordingly, we dismiss Mr. Craigo’s mandamus petition as moot.
Mr. Oxier has petitioned this Court for a writ of mandamus to compel the Circuit Court of Randolph County to appoint counsel. His legal assistance problems arise from suits he has filed as plaintiff in the Circuit Court of Randolph County over alleged personal injuries. The defendants’ attorneys in these suits by Mr. Oxier have filed motions to dismiss Mr. Oxier’s claims on the grounds that they were brought outside the two-year statute of limitations. Mr. Oxier states that he does not know what further action to take, because he does not have an attorney; no attorney will take his case; and, he does not possess the requisite legal knowledge to prosecute his cases himself.
II
We have come a long way from the days when conviction of a criminal offense carried with it the penalty of “civil death,” a doctrine under which society stripped a convict of his right to sue. Furthermore, in an earlier case involving Mr. Craigo, we held that a convict is free to file a civil action without having of a committee appointed pursuant to
W.Va.Code,
28-5-33 [1982], or by using a “next friend” pursuant to
W. Va.R. Civ.P.
17(c). Syl. Pt. 1,
Craigo v. Marshall,
175 W.Va. 72, 331 S.E.2d 510 (1985). Although we have removed most of the barriers to access to the courts that a convict has historically faced, we have not detailed the affirmative actions the state must take to insure that this access to the courts is meaningful. Even in cases where there is no absolute right to counsel, the peculiar circumstances of a case may make the assistance of counsel necessary.
At the outset we note that we exclude criminal cases from our analysis here. The 6th and 11th Amendments to the
Constitution of the United States
require the appointment of counsel for an indigent in all criminal proceedings.
Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Additionally, prisoners are entitled to assistance of counsel in cases involving fundamental constitutional rights raised in civil habeas corpus proceedings.
But these holdings have no bearing on the question before us today concerning whether prisoners have a right to court-appointed counsel in ordinary civil actions.
Indigent civil litigants do not have a constitutional or statutory right to legal representation in all cases. “Nevertheless, particularly when rights of a constitutional dimension are at stake, a poor person’s access to the federal courts must not be turned into an exercise in futility.
See Bounds v. Smith,
430 U.S. 817, 821-824 [97 S.Ct. 1491, 1494-1496, 52 L.Ed.2d 72] (1977);
Haines v. Kerner,
404 U.S. 519, 520 [92 S.Ct. 594, 595, 30 L.Ed.2d 652] (1972).”
Merritt v. Faulkner,
697 F.2d 761 (7th Cir.1983). The principle of meaningful access is reflected in many decisions by the Supreme Court of the United States, lower federal courts, and the state courts. Furthermore, Congress in 28 U.S.C. § 1915 [1979],
and the West Virginia Legislature in
W.Va.Code,
59-2-1 [1923]
have indi
cated that the courts must be available to the rich and poor alike.
It has long been noted that it is not' necessary to provide legal assistance for every conceivable civil claim prisoners wish to process. Both the courts and the legal-assistance agencies themselves have the right to determine which claims merit legal assistance.
Kelsey v. State of Minnesota,
622 F.2d 956, 958 n. 2 (8th Cir.1980);
See generally Johnson v. Avery,
393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969). But although trial courts have no duty to appoint counsel to represent indigent civil litigants, imprisoned or not, 28 U.S.C. § 1915 [1979] and
W.Va.Code,
59-2-1 [1923] endow trial courts with the discretion to do so.
Willett v. Wells,
469 F.Supp. 748 (E.D.Tenn.1977)
aff'd without opinion
595 F.2d 1227 (6th Cir.1979) (interpreting 28 U.S.C. § 1915). And although the trial courts must exercise this discretion on a case by case basis, we can identify certain classes of cases where appointment of counsel will usually be proper and certain classes where appointment will seldom be proper.
It is impossible to establish hard- and-fast guidelines for the appointment of counsel for indigent prisoners, but it is possible to sketch a general typology that will provide a frame of reference for the intelligent use of discretion. Three general classes of cases emerge as follows: (1) Civil cases where the state has traditionally provided legal aid to indigents such as
di
vorce, paternity, or the termination of parental rights, (2) fee generating cases, and (3) civil rights cases. In the first type of case there is a presumption in favor of appointing counsel for defendants; in the second type there is a presumption against appointing counsel; and, in the third type the circuit court should apply a five factor test before deciding whether to appoint counsel for the preparation of the petitioner’s complaint.
A. CIVIL CASES WHERE THE STATE HAS TRADITIONALLY PROVIDED LEGAL AID TO INDIGENTS
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NEELY, Justice:
Robert Gary Craigo and James M. Oxier are indigent prisoners. Each has brought a civil suit in his own name, and each has had little success in prosecuting his action. Although we have held that a convict may sue in his own name,
Craigo v. Marshall,
175 W.Va. 72, 331 S.E.2d 510 (1985), we have not detailed what aid the State of West Virginia must provide to indigent convicts to bring civil suits. Today we hold that indigent convicts enjoy the same right to legal aid as indigent freemen, but no more.
I
Mr. Craigo alleged in his petition for a writ of mandamus in this court that two Kanawha County circuit court judges have refused to docket his civil action pursuant to 42 U.S.C. § 1983 [1979] against the May- or of Charleston and “certain City of Charleston police officials”. Chief Judge A. Andrew MacQueen answered that he has reinstated Mr. Craigo’s action to the active docket of his court. Accordingly, we dismiss Mr. Craigo’s mandamus petition as moot.
Mr. Oxier has petitioned this Court for a writ of mandamus to compel the Circuit Court of Randolph County to appoint counsel. His legal assistance problems arise from suits he has filed as plaintiff in the Circuit Court of Randolph County over alleged personal injuries. The defendants’ attorneys in these suits by Mr. Oxier have filed motions to dismiss Mr. Oxier’s claims on the grounds that they were brought outside the two-year statute of limitations. Mr. Oxier states that he does not know what further action to take, because he does not have an attorney; no attorney will take his case; and, he does not possess the requisite legal knowledge to prosecute his cases himself.
II
We have come a long way from the days when conviction of a criminal offense carried with it the penalty of “civil death,” a doctrine under which society stripped a convict of his right to sue. Furthermore, in an earlier case involving Mr. Craigo, we held that a convict is free to file a civil action without having of a committee appointed pursuant to
W.Va.Code,
28-5-33 [1982], or by using a “next friend” pursuant to
W. Va.R. Civ.P.
17(c). Syl. Pt. 1,
Craigo v. Marshall,
175 W.Va. 72, 331 S.E.2d 510 (1985). Although we have removed most of the barriers to access to the courts that a convict has historically faced, we have not detailed the affirmative actions the state must take to insure that this access to the courts is meaningful. Even in cases where there is no absolute right to counsel, the peculiar circumstances of a case may make the assistance of counsel necessary.
At the outset we note that we exclude criminal cases from our analysis here. The 6th and 11th Amendments to the
Constitution of the United States
require the appointment of counsel for an indigent in all criminal proceedings.
Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Additionally, prisoners are entitled to assistance of counsel in cases involving fundamental constitutional rights raised in civil habeas corpus proceedings.
But these holdings have no bearing on the question before us today concerning whether prisoners have a right to court-appointed counsel in ordinary civil actions.
Indigent civil litigants do not have a constitutional or statutory right to legal representation in all cases. “Nevertheless, particularly when rights of a constitutional dimension are at stake, a poor person’s access to the federal courts must not be turned into an exercise in futility.
See Bounds v. Smith,
430 U.S. 817, 821-824 [97 S.Ct. 1491, 1494-1496, 52 L.Ed.2d 72] (1977);
Haines v. Kerner,
404 U.S. 519, 520 [92 S.Ct. 594, 595, 30 L.Ed.2d 652] (1972).”
Merritt v. Faulkner,
697 F.2d 761 (7th Cir.1983). The principle of meaningful access is reflected in many decisions by the Supreme Court of the United States, lower federal courts, and the state courts. Furthermore, Congress in 28 U.S.C. § 1915 [1979],
and the West Virginia Legislature in
W.Va.Code,
59-2-1 [1923]
have indi
cated that the courts must be available to the rich and poor alike.
It has long been noted that it is not' necessary to provide legal assistance for every conceivable civil claim prisoners wish to process. Both the courts and the legal-assistance agencies themselves have the right to determine which claims merit legal assistance.
Kelsey v. State of Minnesota,
622 F.2d 956, 958 n. 2 (8th Cir.1980);
See generally Johnson v. Avery,
393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969). But although trial courts have no duty to appoint counsel to represent indigent civil litigants, imprisoned or not, 28 U.S.C. § 1915 [1979] and
W.Va.Code,
59-2-1 [1923] endow trial courts with the discretion to do so.
Willett v. Wells,
469 F.Supp. 748 (E.D.Tenn.1977)
aff'd without opinion
595 F.2d 1227 (6th Cir.1979) (interpreting 28 U.S.C. § 1915). And although the trial courts must exercise this discretion on a case by case basis, we can identify certain classes of cases where appointment of counsel will usually be proper and certain classes where appointment will seldom be proper.
It is impossible to establish hard- and-fast guidelines for the appointment of counsel for indigent prisoners, but it is possible to sketch a general typology that will provide a frame of reference for the intelligent use of discretion. Three general classes of cases emerge as follows: (1) Civil cases where the state has traditionally provided legal aid to indigents such as
di
vorce, paternity, or the termination of parental rights, (2) fee generating cases, and (3) civil rights cases. In the first type of case there is a presumption in favor of appointing counsel for defendants; in the second type there is a presumption against appointing counsel; and, in the third type the circuit court should apply a five factor test before deciding whether to appoint counsel for the preparation of the petitioner’s complaint.
A. CIVIL CASES WHERE THE STATE HAS TRADITIONALLY PROVIDED LEGAL AID TO INDIGENTS
West Virginia has long allowed poor persons to sue or defend a suit without paying fees or costs.
W.Va.Code,
59-2-1 [1923] has been used in cases where indigent freemen have sought dissolutions of their marriages without paying fees or costs.
Humphrey v. Mauzy,
155
W.Va.
89, 181 S.E.2d 329 (1971).
Furthermore, we have held that due process requires appointed counsel for indigent parties to suits involving termination of parental rights,
State ex rel. Lemaster v. Oakley,
157 W.Va. 590, 203 S.E.2d 140 (1974), and insanity proceedings,
State ex rel. Hawks v. Lazaro,
157 W.Va. 417, 202 S.E.2d 109 (1974).
Other jurisdictions have found a constitutional guarantee to counsel in cases involving paternity.
Finally, these types of proceedings have historically been handled by public legal services.
W.Va.Code,
29-21-2(3)
[1983].
Accordingly, in cases such as these, where an indigent prisoner is a defendant, the circuit court should appoint counsel.
However, unless there is some extraordinary, urgent circumstance, prisoners have no right to have counsel appointed for them as plaintiffs in these cases unless they can show that they will forfeit some important right if not permitted to attend court before their release dates. Imprisonment naturally brings restraints on liberty — one of which is a restraint on going to the courthouse as well as to the supermarket. And we must not be unmindful that while litigation is vexatious for the freeman it is often recreational for the prisoner. Prisoners perceive going to court as a way of getting home to visit friends and family, and as a temporary respite from a tedious penitentiary environment. The tribulations of litigation present no opportunity costs to an inmate, but litigation presents substantial costs to the state if the inmate must be transported to the courthouse with attendant security.
B. FEE GENERATING CASES
In fee generating cases, such as the personal injury claim that Mr. Oxier brings, prisoners may file suit in
forma pauperis,
but unless there are extraordinary circumstances, the court should not appoint counsel.
Ulmer v. Chancellor,
691 F.2d 209 (5th Cir.1982);
Cook v. Bounds,
518 F.2d 779 (4th Cir.1975);
Securities and Exchange Commission v. Alan F. Hughes,
481 F.2d 401 (2nd Cir.1973);
Ehrlich v. Van Epps,
428 F.2d 363, 364 (7th Cir.1970);
Loren v. Jackson,
57 N.C.App. 216, 291 S.E.2d 310 (1982). A convict’s request to have counsel appointed is predicated on his inability otherwise to obtain counsel.
But because the potential fee in meritorious cases should be enough to attract a lawyer, the presumption is against appointing counsel in fee generating cases. For exactly this reason these cases have not traditionally been the domain of public legal services.
W.Va.Code,
29-21-2(3) [1983], This is overwhelmingly the majority position and we see no reason to deviate from the majority rule.
However, we do not accept the majority position without qualification. The circuit courts must recognize that there is a significant difference between a prisoner’s and a freeman’s ability to solicit the aid of a private lawyer. Consequently, our trial courts should maintain a roster of lawyers willing to undertake fee generating litigation on behalf of indigent prisoners and willing to make reasonable efforts to determine the legal and factual validity of such claims.
This should insure that prisoners
have at least one or more conscientious lawyers to evaluate their claims and accept representation in meritorious cases. These rosters should be updated at least annually and provided to prisoners seeking legal assistance. If it is impossible to construct such a roster, then we will be compelled to think again about the problem, but we leave that for another day.
C. CIVIL RIGHTS CASES
Appointment of counsel in civil rights cases is discretionary and warranted only in exceptional circumstances.
Cook v. Bounds,
518 F.2d 779 (4th Cir.1975);
Owens v. Swift Agr. & Chemical Corp., 477
F.Supp. 91 (E.D.Va.1979).
Civil rights cases often present extremely complex issues and claims. Accordingly, a complainant may need a lawyer’s help if his claim is to be made intelligible. Even though 42 U.S.C. § 1988 [1980] allows the award of fees and creates a market incentive for lawyers to take meritorious civil rights claims, because of the complexity of these claims, the market may be a poor barometer of a claim’s merit. Unfortunately, the vast majority of civil rights claims filed by prisoners are frivolous. In fiscal year 1981, almost 16,000 suits under 42 U.S.C. 1983 [1979] were brought by state prisoners.
McKeever v. Israel,
689 F.2d 1315, 1323 (7th Cir.1982) (Posner, J., dissenting). Designing a prophylactic device that will provide for counsel in meritorious cases without sending a
tsunami
of. lawsuits crashing down upon the courthouse is a formidable task.
The blanket presumptions applied in the first two classes of cases are inappropriate when applied to civil rights cases. Because civil rights cases are difficult for both lawyer and judge to evaluate on the basis of an indigent convict’s
pro se
complaint, it is at the suit’s initial stages that legal help is crucial. Thus where a
pro se
litigant has a colorable claim but lacks capacity to present it, the court should appoint counsel to assist him prepare his complaint.
Gordon v. Leeke,
574 F.2d 1147, 1153 (4th Cir.1978). After an indigent, imprisoned or free, files a
pro se
petition requesting the appointment of counsel in a
civil rights case the circuit court should apply the following five, non-exclusive factor test to decide whether to appoint counsel for the purpose of preparing or amending the petitioner’s complaint:
(1) [W]hether the merits of the indigent’s claim are colorable; (2) the ability of the indigent plaintiff to investigate crucial facts; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) the capability of the indigent litigant to present the case; and (5) the complexity of the legal issues raised by the complaint.
Merritt v. Faulkner,
697 F.2d 761, 764 (7th Cir.1983)
citing Maclin v. Freake,
650 F.2d 885 (7th Cir.1981)
(per curiam).
Under this test there will be many instances where the trial judge will decide that the petitioner needs no help preparing his complaint. In fact, 28 U.S.C. § 1915(d) [1979] specifically empowers the federal courts to dismiss a complaint without issuance of process when examination of the record reveals an action is “frivolous or malicious.”
Boyce v. Alizaduh,
595 F.2d 948 (4th Cir.1979).
W.Va.Code,
59-2-1 [1973] does not contain the same specific language mandating dismissal, but the structure of the statute, which reposes considerable discretion in the circuit courts, fairly implies that the circuit courts are free to dismiss frivolous or malicious complaints.
To determine whether a complaint is frivolous, a circuit court must “find ‘beyond doubt’ and under any ‘arguable’ construction, ‘both in law and in fact’ of the substance of the plaintiff’s claim that he would not be entitled to relief.”
Boyce v. Alizaduh,
595 F.2d at 952. A complaint’s maliciousness is based on the litigant’s intent and is most frequently evidenced by a multiplicity of suits.
See
Bagwell,
Procedural Aspects of Prisoner § 1983 and § 225k Cases in the Fifth and Eleventh Circuits,
95 F.R.D. 435 (1982). Finally, when a particular litigant has flooded the court with “frivolous, repetitive complaints,” the circuit court may impose a system of prefiling review.
Graham v. Riddle,
554 F.2d 133 (4th Cir.1977).
If the trial judge decides to assign counsel after applying the five factor
Maclin
test, the appointment shall last at least through the preparation of the petitioner’s complaint. Once the complaint has been properly prepared, the civil rights litigant, by virtue of 42 U.S.C. § 1988 [1980] may be in substantially the same position as the indigent litigant in the “Fee Generating Case.” Certainly at this point it is no longer difficult to evaluate the merits of the indigent’s claim. Because 42 U.S.C. § 1988 [1980] allows the award of attorney’s fees to prevailing plaintiffs, an indigent prisoner with a meritorious civil rights claim
may
be expected to find a lawyer to take his case. However, we recognize that winning even meritorious cases is often difficult and the fee awards sufficiently parsimonious that cases of
public
importance may not be taken exclusively on a fee generating basis. As with other issues in this thorny area of prisoners’ rights, whether to continue the assignment of appointed counsel beyond the initial preparation of the complaint is a matter that must be reposed in the sound discretion of the circuit court.
Ill
Under our analysis, it is within the discretion of the Circuit Court of Randolph County whether to appoint counsel in Mr. Oxier’s case. As we have stated:
“A writ of mandamus will not issue unless three elements coexist — (1) a clear right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.”
Syl. Pt. 2,
State ex rel. Kucera v. City of Wheeling,
153 W.Va. 538, 170 S.E.2d 367 (1969). Accordingly, we direct the Circuit Court of Randolph County to prepare a list of lawyers willing to review Mr. Oxier’s fee generating claims, and to make this list available to Mr. Oxier.
No. 17085 — Writ denied.
No. 17086 — Writ awarded as moulded.