Mora v. Chapa et al

Filing 32

OPINION AND ORDER denying 28 Motion to Appoint Counsel.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GERALD MORA,
Plaintiff,
VS.
JOSE CHAPA, et al,
Defendants.

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§ CIVIL ACTION NO. 2:12-CV-334
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OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF
COUNSEL
Plaintiff Gerald Mora is a prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division (“TDCJ-CID”), and is currently incarcerated at the
Beeville, Texas. On October 26, 2012, he filed this civil rights action pursuant to 42
U.S.C. § 1983 alleging that certain TDCJ-CID officials had violated his constitutional
rights by denying him recommended medical treatment, in deliberate indifference to his
serious medical needs. (See D.E. 1). In particular, plaintiff claims that he was denied
cleaning supplies for his stoma, and that he contracted an infection as a result (Id.).
Plaintiff’s claim against defendant Nurse Jose Chapa was retained (D.E. 19). Pending is
plaintiff’s motion for appointment of counsel (D.E. 28).
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.
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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 and his testimony during the
evidentiary hearing 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.
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. No trial is set; accordingly, examination of this factor is
premature.
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
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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. 28) is denied without prejudice at this time. This order will be sua sponte
reexamined as the case proceeds.
ORDERED this 9th day of May, 2013.

___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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