Vicks v. Tanner et al
Filing
11
ORDER AND REASONS denying 7 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Chief Judge Sarah S. Vance on 7/12/13. (cc to Mag 1 and CM for Mag 1) (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD RAY VICKS
CIVIL ACTION
VERSUS
NO: 13-4773
ROBERT TANNER, ET AL.
SECTION: R
ORDER AND REASONS
Plaintiff, Donald Ray Vicks, appeals the Magistrate Judge's
order denying his motion to appoint counsel.1 For the following
reasons, plaintiff's motion is DENIED.
I.
BACKGROUND
Vicks brings this claim under 42 U.S.C. § 1983, and alleges
that defendants, the Warden, Deputy Warden, and Assistant Warden
of Rayburn Correctional Center, have violated his constitutional
rights by depriving him of his ability to exercise while in
prison.2 Vicks alleges his cell is too small for exercise and
that he is restrained during outdoor exercise periods.3 Vicks has
HIV and alleges that his inability to exercise causes him serious
injuries.4
1
R. Docs. 6, 7.
2
R. Doc. 1 at 18.
3
R. Doc. 1.
4
R. Doc. 4-2 at 1.
Plaintiff filed a motion for appointment of counsel.5 The
Magistrate Judge denied plaintiff's motion because plaintiff's
claims were not "factually or legally complex," and would not
require "extensive discovery or investigation."6 Further, the
Magistrate Judge found that trial would not "require skills
beyond plaintiff's capabilities."7 Plaintiff appeals the
Magistrate Judge's Order.8
II.
STANDARD
If a party is dissatisfied with a Magistrate Judge's ruling,
it may appeal to the District Judge, who may reconsider the
ruling and reverse it where it has been shown that the Magistrate
Judge's order is "clearly erroneous or contrary to law.” Fed. R.
Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); see also Castillo v.
Frank, 70 F.3d 382, 385 (5th Cir. 1995). A finding is clearly
erroneous when a reviewing court is “left with the definite and
firm conviction that a mistake has been committed.” United States
v. Stevens, 487 F.3d 232, 240 (5th Cir. 2007) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
5
R. Doc. 4.
6
R. Doc. 6.
7
R. Doc. 6.
8
R. Doc. 7.
2
III. THE MAGISTRATE JUDGE'S DECISION WAS NOT CLEARLY ERRONEOUS
There is no general right to counsel in civil rights
actions. McFaul v. Valenzuela, 684 F.3d 564, 581 (5th Cir. 2012)
(citing Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987)). A
district court should not appoint counsel simply because
appointment of counsel would be beneficial. See Saulsberry v.
Edwards, No. 07-5395, 2007 WL 4365394 at *2 (E.D. La. Dec. 11,
2007) (citing Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir.
1997)). Instead, a district court should appoint counsel only if
exceptional circumstances exist. See, e.g., McFaul, 684 F.3d at
86 (citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982); Norton, 122 F.3d at 293).
District courts consider four factors when deciding whether
exceptional circumstances exist in a particular case:
(1) the type and complexity of the case; (2)
whether [plaintiff] is capable of adequately
presenting [his] case; (3) whether [plaintiff] is
in a position to investigate adequately 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.
Gilbert v. French, 364 F. App'x 76, 84 (5th Cir. 2010) (second
alteration in original) (quoting Ulmer, 691 F.2d at 213).
Considering the four Ulmer factors, the Magistrate Judge's Order
was neither clearly erroneous nor contrary to law.
3
A.
Type and Complexity of the Case
While a prisoner's HIV may create a complex issue in some
circumstances, see, e.g., Moore v. Mabus, 976 F.2d 268, 270, 272
(5th Cir. 1992) (directing district court to appoint counsel when
claims involved systemic prison policies regarding HIV management
and experts on HIV management were required), it does not
automatically require appointment of counsel. See Horn v.
Vaughan, 469 F. App'x 360, 363 (5th Cir. 2012) (holding that
district court properly declined to appoint counsel and noting
that "Moore does not mean that counsel must be appointed in every
case where HIV is involved"). In Horn, a plaintiff was denied HIV
medication for several months. Horn, 469 F. App'x at 361.
Similarly, Vicks claims that defendants are depriving him of a
type of HIV treatment, namely, exercise.9 Unlike Moore, Vicks is
not challenging complex "systemic prison policies regarding HIV
management." Id. at 363. Accordingly, plaintiff's claims are
neither factually nor legally complex.
B.
Plaintiff’s Ability To Adequately Present And
Investigate His Case
Plaintiff has worked with fellow prisoners to file his
pleadings, and he has access to prison inmate lawyers to aid him
9
R. Doc. 4-2 at 1.
4
in presenting and investigating his case.10 Further, a
plaintiff’s ability to timely file motions and his past ability
to represent himself can be considered evidence of his ability to
adequately present his case. See Saulsberry, 2007 WL 4365394, at
*2 n.15 (citing Salmon v. Corpus Christi Indep. Sch. Dist., 911
F.2d 1165, 1166 (5th Cir. 1990)). Here, plaintiff has timely
filed his motions, and he has previously represented himself in a
§ 1983 case that went to trial. See Vicks v. Griffin, No. 075471, 2008 WL 553186 (E.D. La. Feb. 28, 2008). Therefore,
plaintiff is capable of adequately presenting and investigating
his case.
C.
Skill in Presentation of Evidence and Cross Examination
Although plaintiff claims that testimony will be in sharp
conflict, a trial will not require skills beyond his
capabilities.11 Plaintiff has already tried a case without
assistance of counsel.12 Therefore, plaintiff has not shown that
the presentation of evidence and cross examination will require
skills beyond his capability.
10
R. Doc. 4 at 1.
11
R. Doc. 4-2 at 2.
12
See Minute Entry, Vicks, No. 07-5471(E.D. La. Nov. 11,
2008).
5
Accordingly, the Magistrate Judge's ruling was not clearly
erroneous, and plaintiff's motion is DENIED.
IV.
CONCLUSION
For the foregoing reasons, Vicks's motion is DENIED.
New Orleans, Louisiana, this 12th day of July, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
6
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