Thomas v. Brooks County Detention Center et al

Filing 11

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL denying 10 Motion to Appoint.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(mserpa, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION DAVID TYRONE THOMAS, § § v. § § BROOKS COUNTY DETENTION CTR., ET AL.§

C.A. NO. C-08-304

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL Plaintiff is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently incarcerated at the Cotulla Unit in Cotulla, Texas. Proceeding pro se, he filed a civil rights action pursuant to 42 U.S.C. § 1983. (D.E. 1). Pending is his motion for appointment of counsel. (D.E. 10). No constitutional right to appointment of counsel exists in civil rights cases. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994) (per curiam). A district court is not required to appoint counsel unless "`exceptional circumstances'" exist. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (quoting Jackson v. Dallas Police Dep't, 811 F.2d 260, 261 (5th Cir. 1986) (per curiam)). Among the factors that the Court should consider are: "(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 the presentation of evidence. The court should also consider whether appointed counsel would aid in the efficient and equitable disposition of the case." Jackson, 811 F.2d at 262 (citing Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)); accord Norton v. Dimanza, 122 F.3d 286, 293 (5th Cir. 1997). Upon careful consideration of the factors set forth in Jackson, the Court finds that

appointment of counsel is not warranted at this time. Regarding the first factor, plaintiff's civil rights claims do not present any complexities that are unusual in prisoner actions. The second and third factors are whether the plaintiff is in a position to adequately investigate and present his case. Plaintiff has thus far demonstrated that he is able to adequately communicate and file pleadings with the Court. The fourth factor requires an examination of whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence. Plaintiff's action has not been scheduled for trial; consequently, at this time, the appointment of counsel for trial would be premature. Indeed, plaintiff has not even paid his filing fee, or provided a six-month inmate trust fund account statement with his motion to proceed in forma pauperis. Finally, there is no indication that appointing counsel would aid in the efficient and equitable disposition of the case. For the foregoing reasons, plaintiff's motion for appointed counsel, (D.E. 10), is DENIED without prejudice. ORDERED this 7th day of October 2008.

____________________________________ BRIAN L. OWSLEY UNITED STATES MAGISTRATE JUDGE

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