Martinez v. Flores et al

Filing 110

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL denying 102 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
JORGE ALBERTO MARTINEZ
v.
OFFICER FLORES, ET AL.

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C.A. NO. C-11-081

OPINION DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
This civil rights action was filed by an individual pursuant to 42 U.S.C. § 1983 alleging
excessive force during an arrest. (D.E. 1). After filing this action, plaintiff was convicted by a jury
of assaulting a public servant. (D.E. 49, at 1). Pending is his motion for appointment of counsel.
(D.E. 102).
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)). The Fifth Circuit has enunciated
several factors that the Court should consider in determining whether to appoint counsel:
(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. Dimazana, 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 communicate adequately 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. On April 24,
2012, defendants’ motions for summary judgment were granted, and plaintiff’s action was
dismissed. See generally Martinez v. Flores, C-11-081, 2012 WL 1435740 (S.D. Tex. Apr. 24,
2012) (unpublished). Final judgment was entered that same day. (D.E. 84). 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. 102), is DENIED.
ORDERED this 18th day of July 2012.

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BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE

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