Richie v. UTMB Hospital Galveston et al
Filing
12
MEMORANDUM OPINION AND ORDER denying 4 MOTION for Appointment of Counsel (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lsmith, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JEFFREY ALAN RICHIE,
Plaintiff,
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v.
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UTMB HOSPITAL GALVESTON, ET AL.,
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Defendants.
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Cause No. 2:12cv322
MEMORANDUM OPINION AND ORDER DENYING
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Jeffrey Alan Richie is a prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division (“TDCJ-CID”), and is currently incarcerated at the McConnell
Unit in Beeville, Texas. On October 15, 2012, he filed this civil rights action pursuant to 42
U.S.C. § 1983 alleging that certain TDCJ-CID officials, as well as medical personnel at the
University of Texas Medical Branch (“UTMB”), had violated, and were continuing to
violate, his constitutional rights by denying him recommended medical treatment, in
deliberate indifference to his serious medical needs. (See D.E. 1 at 3-4). In particular,
plaintiff claims that, on June 19, 2007, he was the victim of excessive force by officers with
the Wharton County Sheriff Department, and that during his arrest, his left shoulder was
injured. Id. at 7. On February 8, 2008, he entered the TDCJ-CID where he was first housed
at the Byrd Unit. Id. He has had two surgeries on his left shoulder, the last one being on
January 28, 2011, but those surgeries have left him “with continuing pain in his shoulder with
enabling injuries to his neck and spine.” Id. at 4. He claims further that he was diagnosed
with a “severe injury in his lower back,” and that on March 21, 2012, back surgery was
recommended, but the surgery was not approved. Id. He seeks injunctive relief, as well as
compensatory and punitive damages. Pending is plaintiff’s motion for appointment of
counsel (D.E. 4).
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. He appears, at this
stage of the case, to be in a position to adequately investigate and present his case.
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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. A Martinez1 report was
ordered on October 17, 2012 (D.E. 11). Until that report is received, no screening pursuant
to 28 U.S.C. § 1915A will occur.
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
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. 4) is
denied without prejudice at this time. This order will be sua sponte reexamined as the case
proceeds.
ORDERED this 18th day of October, 2012.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); Cay v. Estelle, 789 F.2d 318, 323 n. 4
(5th Cir. 1986).
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