Davis v. Thaler et al

Filing 179

MEMORANDUM OPINION AND ORDER denying 178 MOTION for Appointment of counsel (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TEDDY NORRIS DAVIS, et al,
Plaintiffs,
VS.
BILLY PIERCE, et al,
Defendants.

§
§
§
§ CIVIL ACTION NO. 2:12-CV-166
§
§
§
§

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL ON APPEAL
Plaintiffs, proceeding pro se and in forma pauperis, are inmates incarcerated
TDCJ-CID’s McConnell Unit in Beeville, Texas. They filed this lawsuit pursuant to the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc,
and the First Amendment, alleging that their right to practice their Native American faith
is being violated by TDCJ-CID. Summary judgment in favor of Defendants was entered,
and Plaintiffs have appealed (D.E. 158, 159, 161). Pending is Plaintiffs’ motion for
appointment of counsel on appeal (D.E. 178).
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
1/3

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, plaintiffs’ allegations are not complex.
The second and third factors are whether the plaintiffs are in a position to
adequately investigate and present their appeal. Plaintiffs’ pleadings demonstrate that
they are reasonably intelligent, articulate, and able to describe the facts underlying their
claims. They appear, at this stage of the case, to be in a position to adequately investigate
and present their appellate arguments.
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 irrelevant, as Plaintiffs’ claims
were disposed of prior to trial. Plaintiffs claim to need an expert for purposes of their
appeal, but the appeal must be decided on the record before the District Court, not new
evidence from, as yet, unidentified experts. This factor weighs against appointment of
counsel.
Plaintiffs have not shown that exceptional circumstances require the appointment
of counsel. In addition, there is no indication that appointed counsel would aid in the
2/3

efficient and equitable disposition of the case. The Court has the authority to award
attorneys' fees to prevailing plaintiffs. 42 U.S.C. § 1988. Plaintiffs are not prohibited
from hiring an attorney on a contingent-fee arrangement.

Plaintiffs’ motion for

appointment of counsel (D.E. 178) is denied without prejudice at this time.
ORDERED this 16th day of May, 2014.

___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

3/3