Keys v. Torres et al

Filing 27

OPINION AND ORDER denying 24 Motion to Appoint Counsel.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROBERT DANIEL KEYS,
Plaintiff,
VS.
CANDACE TORRES, et al,
Defendants.

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§ CIVIL ACTION NO. 2:12-CV-350
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OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF
COUNSEL
Plaintiff, proceeding pro se and in forma pauperis, is an inmate incarcerated
TDCJ-CID’s McConnell Unit in Beeville, Texas. He filed this lawsuit pursuant to 42
U.S.C. § 1983, complaining about the violation of his first amendment right to receive
certain publications at the prison (D.E. 1). Pending is his motion for appointment of
counsel (D.E. 24).
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
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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. Plaintiff complains that his first amendment right to receive
certain publications at the prison has been violated.

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 at an evidentiary
hearing demonstrate that he is 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. Plaintiff has access to the unit law library.
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. Plaintiff’s claims
have been screened and an answer filed, but summary judgment motions have not been
filed, and a trial date has not been set.
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
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hiring an attorney on a contingent-fee arrangement. Plaintiff's motion for appointment of
counsel (D.E. 24) is denied without prejudice at this time. This order will be sua sponte
reexamined as the case proceeds.
ORDERED this 24th day of September, 2013.

___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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