Davis v. Thaler et al
Filing
197
OPINION AND ORDER denying without prejudice 193 Motion to Appoint Counsel.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(lcayce, 2)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TEDDY NORRIS DAVIS, et al,
Plaintiffs,
VS.
CLINT MORRIS, et al,
Defendants.
July 26, 2016
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 2:12-CV-166
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OPINION AND ORDER DENYING WITHOUT PREJUDICE
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Davis has moved for appointment of counsel (D.E. 193). The Fifth
Circuit Court of Appeals affirmed in part and reversed in part the order granting summary
judgment in favor of Defendants. An order for additional briefing and evidence was
entered July 12, 2016 as to Plaintiffs' claims pursuant to the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc (D.E. 192). The case has
not yet been scheduled for trial.
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
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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. This case is not overly complex. Only Plaintiff's RLUIPA
claims remain for summary judgment and/or trial. At this summary judgment stage,
Plaintiff's allegations are serious but not complex.
The second and third factors are whether the plaintiff is in a position to adequately
investigate and present his case. Id. Plaintiff’s pleadings demonstrate he is reasonably
articulate and intelligent. He has ably supported his claims before the Fifth Circuit Court
of Appeals. Plaintiff 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. Id. Examination of this factor is premature because the case
has not yet been set for trial.
Finally, 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 to a
prevailing plaintiff. 42 U.S.C. § 1988. Plaintiff is not prohibited from hiring an attorney
on a contingent-fee arrangement. Plaintiff Davis's motion for appointment of counsel
(D.E. 193) is denied without prejudice at this time. This order will be sua sponte
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reexamined if this case is scheduled for trial after the summary judgment phase of the
case is completed.
ORDERED this 26th day of July, 2016.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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