Ramirez v. Guterrez et al
Filing
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MEMORANDUM OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND FOR PRIVATE INVESTIGATOR re 49 MOTION for Appointment of Counsel or Private Investigator (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JUAN RAMIREZ, JR.,
Plaintiff,
v.
ERNEST GUTIERREZ, ET AL.,
Defendants.
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Cause No. 2:11cv408
MEMORANDUM OPINION AND ORDER DENYING
MOTION FOR APPOINTMENT OF COUNSEL
AND FOR PRIVATE INVESTIGATOR
Plaintiff Juan Ramirez, Jr. is a former prisoner at the Texas Department of Criminal
Justice, Criminal Institutions Division’s (“TDCJ-CID”) McConnell Unit, and is currently
incarcerated at the USP McCreary in Pine Knot, Kentucky. On December 27, 2011, he filed
this civil rights action pursuant to 42 U.S.C. § 1983 alleging that certain employees of TDCJCID were deliberately indifferent to his serious medical needs when they extracted a healthy
tooth without anesthetic and left a painful and diseased molar in place for several months
(D.E. 1). Pending is plaintiff’s motion for appointment of counsel and for a private
investigator (D.E. 49).
In Bounds v. Smith, the Supreme Court held that a prisoner's constitutional right of
access to the courts requires that the access be meaningful; that is, prison officials must
provide pro se litigants with writing materials, access to the law library, or other forms of
legal assistance. Bounds v. Smith, 430 U.S. 817, 829 (1977). There is, however, no
constitutional right to appointment of counsel in civil rights cases. Akasike v. Fitzpatrick,
26 F.3d 510, 512 (5th Cir. 1994); Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982).
Further, Bounds did not create a "free-standing right to a law library or legal assistance."
Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). It is within the Court's discretion to appoint
counsel, unless the case presents "exceptional circumstances," thus requiring the
appointment. 28 U.S.C. § 1915(e)(1); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
A number of factors should be examined when determining whether to appoint
counsel. Jackson v. Dallas Police Department, 811 F.2d 260, 261-62 (5th Cir. 1986) (citing
Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982)). The first is the type and complexity of
the case. Id. Though serious, plaintiff’s allegations are not complex.
The second and third factors are whether the plaintiff is in a position to adequately
investigate and present his case. Plaintiff’s pleadings demonstrate that he is reasonably
intelligent, articulate, and able to describe the facts underlying his claims, and that he knows
how to use the law library. He appears, at this stage of the case, to be in a position to
adequately investigate and present his case.
The fourth factor which should be examined is 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. Examination of this factor is premature. The parties are in the
discovery phase of the case. Dispositive motions are not due until July 26, 2013 (D.E. 44).
Plaintiff has not shown that exceptional circumstances require the appointment of
counsel. In addition, there is no indication that appointed counsel would aid in the efficient
and equitable disposition of the case. The Court has the authority to award attorneys' fees
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to a prevailing plaintiff. 42 U.S.C. § 1988. Plaintiff is not prohibited from hiring an attorney
on a contingent-fee arrangement. Plaintiff's motion for appointment of counsel (D.E. 47) is
denied without prejudice at this time. This order will be sua sponte reexamined as the case
proceeds.
Plaintiff seeks, in the alternative, appointment of a private investigator. There are no
funds available for a private investigator, and plaintiff has not shown the need for one in this
litigation.
ORDERED this 5th day of April, 2013..
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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