Rodriguez v. Cain et al

Filing 90

ORDER denying 89 Motion to Appoint Counsel and 89 Motion to Stay the Proceedings. Signed by Magistrate Judge Docia L Dalby on 5/24/2011. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LUIS RODRIGUEZ (#381927)

CIVIL ACTION

VERSUS
N. BURL CAIN, ET AL.

NO. 10-0736-FJP-DLD

RULING ON MOTION
This matter comes before the Court on the plaintiff’s Motion, rec.doc.no. 89, pursuant to which
he requests a stay of proceedings in this case and also requests the appointment of counsel.
The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, brought this action pursuant to 42 U.S.C. § 1983 against Warden N. Burl Cain, Ass’t
Warden John Larry Calvert, Mental Health Social Worker Dave Akenbrand, and unidentified “John
Doe” employees at LSP, complaining that the defendants have violated his constitutional rights,
commencing in October, 2009, by exhibiting deliberate indifference to his serious medical needs.
Specifically, the plaintiff complains that, when he arrived at LSP in October, 2009, he was not
provided with shoes of any kind and, as a result, he developed a foot infection and was unable to
utilize the exercise yard, which has caused him physical and mental suffering. In addition, the plaintiff
complains that the defendants have refused his requests for state-issued clothing and for access to
his legal materials.

Finally, the plaintiff complains that when he requested assistance from the

prison’s mental health department, his requests were refused or ignored.
Initially, the plaintiff asserts that, because of emergency conditions existing at LSP, and
because of evacuations being conducted due to high water, he does not have his legal materials or
the help of inmates who have previously assisted him with this case. Accordingly, he seeks a stay
of proceedings pending the prison’s return to normalcy. While the Court finds that a stay of
proceedings is not warranted in this case at the present time, the Court will grant the plaintiff a further
extension of time to respond to the defendants’ pending Motion for Summary Judgment.

Turning to the plaintiff’s request for appointment of counsel, he Court notes, at the outset, that
the Court does not have the power or authority under § 1915(d) to “appoint” counsel in a civil rights
case in the sense of requiring and compelling an attorney to represent the plaintiff in connection with
his claims. See Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d
318 (1989). Section 1915(d), by its express terms, authorizes the Court only to “request” an attorney
to represent an in forma pauperis litigant. Id. Further, an in forma pauperis plaintiff seeking to assert
a civil rights claim under § 1983 has no automatic right to the assistance of counsel under § 1915(d),
and the Court is not required to seek such counsel “unless the case presents exceptional
circumstances.” See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). As explained in Ulmer,
supra:
Although “[n]o comprehensive definition of exceptional circumstances is practical,” a number
of factors should be considered in ruling on requests for appointed counsel. These include:
(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 to investigate adequately the
case...; and (4) whether the evidence will consist in large part of conflicting testimony so as
to require skill in presentation of evidence and in cross examination ....
In the instant case, the Court finds that such “exceptional circumstances” requiring the appointment
of counsel are not apparent at this time. This complaint is neither factually nor legally complex, and
no other factors in Ulmer, supra, are found to require appointment of counsel. The plaintiff has set
out the factual basis for his claim in his Complaint. This pleading and others reflect that the plaintiff
understands the proceedings and can address the issues presented. The plaintiff has been provided
with the records of his administrative remedy proceedings as well as with substantial documentation
from the defendants. At a later point, if warranted, he will also be able seek other documentation and
information through formal discovery channels. He can use these materials to cross-examine the
defendants and prepare for trial.
Further, it does not appear that any great skill will be needed to cross-examine the witnesses
in connection with the issues in this case. Pro se plaintiffs are given great flexibility in the examination

of witnesses. The plaintiff has adequately presented his case thus far and does not appear to come
within the “exceptional circumstances” test.
Further, to the extent that the plaintiff asserts that he has a limited knowledge of the law, this
is true of nearly every prisoner who prosecutes a pro se lawsuit. For this reason, pro se pleadings
are held to less stringent standards than formal pleadings drafted by attorneys. Haines v. Kerner, 404
U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). This Court is liberal in reviewing inmate pro so
pleadings and motions filed under § 1983, giving inmates ample opportunity to amend if necessary,
and granting generous extensions of time to comply with Court Orders. Consequently, the Court’s
liberal construction of prisoner § 1983 pleadings and motions, coupled with the lack of complexity of
the legal issues in this case, together with the plaintiff’s apparent ability to litigate this action pro se,
convinces the Court that the appointment of counsel is not necessary at this time.
Finally, the Court finds that the appointment of counsel would be of little service to the Court
or the plaintiff in this case and would not significantly assist in the shaping of the examination of the
witnesses or the sharpening of the issues for trial.
Having considered the factors set forth in Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982),
the Court finds that appointment of counsel is not required or warranted in this case.
Accordingly, for the foregoing reasons,
IT IS ORDERED that the plaintiff is hereby granted an extension of time of thirty (30) days
from the date of this Order within which to respond to the defendants’ pending Motion for Summary
Judgment.
IT IS FURTHER ORDERED that the plaintiff’s motion for appointment of counsel is DENIED.
Signed in Baton Rouge, Louisiana, on May 24, 2011.

MAGISTRATE JUDGE DOCIA L. DALBY