Garrett v. Thaler

Filing 44

ORDER denying without prejudice 42 Motion to Appoint Counsel.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(sscotch, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL GARRETT,
Plaintiff,
VS.
WILLIAM STEPHENS,
Defendant.

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§ CIVIL ACTION NO. 2:13-CV-70
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OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF
COUNSEL
Plaintiff is an inmate in the Texas Department of Criminal Justice - Institutional
Division, currently assigned to the McConnell Unit in Beeville, Texas. Proceeding pro se
and in forma pauperis, plaintiff filed a civil rights complaint pursuant to 42 U.S.C. §
1983, alleging that Defendant Director Stephens has designed a schedule that deprives
him of sleep in violation of his Constitutional Rights under the Eighth Amendment (D.E.
1, 29). Pending is plaintiff’s motion for appointment of counsel (D.E. 42).
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
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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. This case is not complex. According to Plaintiff, his health
has suffered because he experiences sleep deprivation due to the TDCJ’s schedule, which
fails to allow him adequate sleep time. 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. Id. Plaintiff’s pleadings demonstrate he is reasonably
articulate and intelligent. His testimony during an evidentiary hearing revealed that he
understands his claim and can investigate and present his case. Plaintiff appears, at this
early 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. Dispositive motions have not yet been filed.
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
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on a contingent-fee arrangement. Plaintiff's motion for appointment of counsel (D.E. 42)
is denied without prejudice at this time. This order will be sua sponte reexamined as the
case proceeds.
ORDERED this 8th day of July, 2014.

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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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