Moore v. Cresent Medical Center et al

Filing 28

MEMORANDUM OPINION AND ORDER DENYING 27 MOTION TO APPOINT COUNSEL AND, ALTERNATIVELY, TO APPOINT AN EXPERT. (Ordered by Magistrate Judge David L. Horan on 2/16/2017) (twd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEWELLEAN MOORE,
Plaintiff,
V.
CRESCENT MEDICAL CENTER,
ET AL.,
Defendants.

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No. 3:16-cv-3362-M-BN

MEMORANDUM OPINION AND ORDER DENYING MOTION TO APPOINT
COUNSEL AND, ALTERNATIVELY, TO APPOINT AN EXPERT
This pro se medical malpractice case proceeding under the Court’s diversity
jurisdiction has been referred to the undersigned United States magistrate judge for
pretrial management pursuant to 28 U.S.C. § 636(b) and a standing order of reference
from Chief Judge Barbara M. G. Lynn.
Plaintiff Jewellean Moore, who has been granted leaved to proceed in forma
pauperis (“IFP”), now moves for court-appointed counsel or, alternatively, a courtappointed medical expert. See Dkt. No. 27.
For the reasons and to the extent explained in this order, the Court DENIES
Moore’s motion without prejudice as to the appointment of counsel and as to the
appointment of an expert to the extent that the Court leaves open the option that it
may appoint an expert to aid the Court in the future but with prejudice as to the
appointment of an expert to the extent that Moore requests that the Court appoint an
expert to assist her individually.
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Legal Standards and Analysis
Appointment of Counsel
“There is no absolute right to an attorney in [civil] cases.” Nickols v. Morris, 705
F. Supp. 2d 579, 584 (N.D. Tex. 2010). That is, a pro se plaintiff, “even if demonstrably
indigent, is not entitled to appointed counsel as a matter of right.” Naranjo v.
Thompson, 809 F.3d 793, 799 (5th Cir. 2015) (citing Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982)). Although the Court has statutory authority to appoint counsel to
represent an indigent person in the prosecution of a suit, see 28 U.S.C. § 1915(e)(1),
that authority is typically exercised only in “exceptional circumstances,” Jackson v.
Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986); see also Naranjo, 809 F.3d at 799
(“even when a plaintiff has nonfrivolous ... claims, a ‘trial court is not required to
appoint counsel ... unless the case presents exceptional circumstances’” (quoting Ulmer,
691 F.2d at 212)); Jemison v. Citimortgage, Inc., Civ. A. No. H-13-2475, 2013 WL
12140971, at *1 (S.D. Tex. Oct. 7, 2013) (“A court may appoint counsel in a civil case
if exceptional circumstances make it necessary for the proper administration of
justice.” (citing Ulmer, 691 F.2d at 212-13)).
District courts in this circuit consider several non-comprehensive factors
(sometimes referred to as Ulmer factors) to determine “whether exceptional
circumstances warrant the appointment of counsel, including:
1. the type and complexity of the case; 2. the petitioner’s ability to present
and investigate his case; 3. the presence of evidence which largely
consists of conflicting testimony so as to require skill in presentation of
evidence and in cross-examination; and 4. the likelihood that
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appointment will benefit the petitioner, the court, and the defendants by
shortening the trial and assisting in just determination.
Naranjo, 809 F.3d at 799 (quoting Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir.
1992)). “District courts may also consider the extent of a plaintiff’s attempts to secure
private counsel independently.” Id. (citing Jackson v. Cain, 864 F.2d 1235, 1242 (5th
Cir. 1989)).
The “courts have ‘considerable discretion’ in deciding whether to appoint counsel.
But that discretion ends once exceptional circumstances are found.” Naranjo, 809 F.3d
at 801 (quoting Branch v. Cole, 686 F.2d 264, 267 (5th Cir. 1982)).1
Moore has not demonstrated that exceptional circumstances justify appointment
of counsel at this time.
A claim of medical malpractice – similar to a claim for deliberate indifference
in violation of 42 U.S.C. § 1983 – may involve complex issues. But that alone does not
justify the appointment of counsel in this case at this time. Cf. Mooney v. Dallas Cty.,
No. 3:05-cv-1432-N, 2008 WL 151250, at *5 (N.D. Tex. Jan. 14, 2008) (“While it is
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Cf. Scoggins v. MacEachern, Civ. A. No. 04-10814-PBS, 2010 WL 3169416, at
*1 (D. Mass. Aug. 10, 2010) (“In order to obtain appointed counsel, ‘an indigent litigant
must demonstrate exceptional circumstances in his or her case to justify the
appointment of counsel.’ The rare cases warranting appointment of counsel in the
interests of justice typically involve nonfrivolous claims with factually and/or legally
complex issues and a petitioner who is severely hampered in his ability to investigate
the facts.” (quoting Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986); other
citations omitted)); Lyle v. United States, Civ. A. No. JFM-09-727 & Crim. No. JFM-02395, 2009 WL 901523, at *1 (D. Md. Mar. 31, 2009) (the decision to appoint counsel
under “[18 U.S.C.] § 3006A(a)(2)(B) ... is similar to the standard applied in deciding
whether to appoint counsel under 28 U.S.C. § 1915(e)(1), wherein the determination
to appoint counsel hinges on the characteristics of the claim and the litigant” (citing
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984))).
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doubtful that an inmate plaintiff is capable of self-representation in an action involving
medical treatment and expert testimony, see the factors enumerated in Ulmer ..., it
does not follow that merely because medical testimony and records are relevant that
this fact renders every civil rights action alleging deliberate indifference to serious
medical needs one in which exceptional circumstances are present.” (emphasis added));
see also Cutts v. Dennehy, Civ. A. No. 09-10902-DPW, 2010 WL 1344977, at *2 (D.
Mass. Mar. 30, 2010) (“While the nature of the claims (medical malpractice/deliberate
indifference to medical needs) can involve complex issues of law and/or fact, that alone
is not sufficient to justify appointment of counsel in this case. A review of the record
indicates that plaintiff is proficient in the English language and has a familiarity with
various legal and medical terms, concepts, and proceedings. There is no market based
impediment to the plaintiff’s own retention of private counsel. This is particularly
common in the medical malpractice/deliberate indifference to medical needs context
where the customary form of engagement for cases of arguable merit is by contingent
fee, and as to constitutional violations, the right to attorney’s fees is available to
prevailing parties. To be sure, the screening process by private attorneys for such
matters serves to filter out unpromising cases. A court should be reluctant to tamper
with this market mechanism for screening cases by independently assigning counsel.”).
To date, there appears to be no reason why Moore cannot adequately research
and investigate the case on her own without the Court’s taking the exceptional step of
appointing counsel. And, although, as a non-lawyer, Moore has a more limited
knowledge of the law, so far, she has presented the Court with adequate pleadings –
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that is, she has been able to articulate her claims so that the Court can understand
them. Cf. Falcon v. Holly, 480 F. App’x 325, 326-27 (5th Cir. 2012) (per curiam)
(vacating summary judgment for defendant on an excessive force claim but, at the
same time, affirming denial of appointment of counsel “[b]ecause [Plaintiff] has not
shown that the case involves exceptional circumstances”). It is not evident, moreover,
that Moore has had difficulties prosecuting her case that are more severe than those
experienced by a typical pro se litigant. See Margin v. Soc. Sec. Admin., Civ. A. No. 084605, 2009 WL 3673025, at *2 (E.D. La. Oct. 28, 2009) (“[E]very litigant benefits by
having an attorney. However, the burden is on the plaintiff to demonstrate that,
unique from other pro se litigants, he will have particular difficulty in investigating
and presenting his case such that his situation justifies the special benefit of having
counsel appointed to represent him.”), reconsideration denied, 2009 WL 4019803 (E.D.
La. Nov. 19, 2009).
The Court is presently unable to ascertain whether the evidence in this case will
consist of conflicting testimony so as to require skill in the presentation of evidence and
cross-examination. It could. But it is too early to tell, as the Court is not in a position
to assess how evidence will be used in this case.
Therefore, none of the Ulmer factors, taken together or individually, currently
compel the appointment of counsel. That is, Moore has not yet shown that this action
is the rare case in which a claim is not only nonfrivolous but also complex and in which
those characteristics of a claim, along with the characteristics of the litigant, warrant
the appointment of counsel.
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Appointment of an Expert
Moore moves the Court to appoint a “sepsis expert” under Federal Rule of
Evidence 706. See Dkt. No. 27. “Rule 706 contemplates the appointment of an expert
to aid the court.” Hannah v. United States, 523 F.3d 597, 600 (5th Cir. 2008) (citing
CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, 3 FEDERAL EVIDENCE §§ 7:25, 7:26
(3d ed. 2007)). Therefore, to the extent that Moore requests the expert to aid her case
alone, that request is denied with prejudice. As the Court explained to Moore in the
February 9, 2017 Initial Scheduling Order,
[a]lthough Plaintiff has been granted leave to proceed in forma pauperis
under the provisions of 28 U.S.C. § 1915, see Dkt. No. 7, “[t]he plain
language of section 1915 does not provide for the appointment of expert
witnesses to aid an indigent litigant,” Pedraza v. Jones, 71 F.3d 194, 196
(5th Cir. 1995)); see also id. at 196-97 & n.5.
Dkt. No. 25, ¶ 4; see also id. at ¶ 1 (“As is her right, Plaintiff has chosen to prosecute
this action without an attorney.... [T]his is Plaintiff’s lawsuit, and, ultimately, Plaintiff
must prove that she is entitled to relief.... This means, among other things, that
Plaintiff is responsible for conducting discovery to obtain the evidence that he needs
to prove her case. This responsibility generally includes obtaining an expert witness
to the extent that expert evidence is required to establish a claim or defense.”).
More broadly, the IFP statute does not “‘require or authorize the court to
subsidize litigation by paying expert fees or other costs that IFP litigants may incur,
such as depositions, duplication, exhibits, or travel.’” Pedraza, 71 F.3d at 196 (quoting
district court order affirmed).

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But, to the unlikely extent that Moore is requesting that the Court appoint a
“sepsis expert” to assist the Court, such a request is denied without prejudice because
it is too early in the life of this proceeding to assess whether such an expert should be
appointed under Rule 706.
Conclusion
The Court DENIES the motion [Dkt. No. 27] without prejudice as to the
appointment of counsel and as to the appointment of an expert to the extent that the
Court leaves open the option that it may appoint an expert to aid the Court in the
future but with prejudice as to the appointment of an expert to the extent that Moore
requests that the Court appoint an expert to assist her individually.
SO ORDERED.
DATED: February 16, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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