Garrett v. Thaler

Filing 61

OPINION AND ORDER DENYING SECOND MOTION FOR APPOINTMENT OF COUNSEL denying 59 Motion to Appoint.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, 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
SECOND 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 second
motion for appointment of counsel (D.E. 59).
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. 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).

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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. 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. In his request for counsel, Plaintiff
complains of inadequate law library time, but that does not appear to be relevant
at this point. There is a motion for summary judgment for failure to exhaust
pending (D.E. 50).

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Plaintiff filed his response without complaining about

inadequate time to conduct law library research. If the case survives summary
judgment, the issue of additional law library time will be addressed.
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's
second motion for appointment of counsel (D.E. 59) is denied without prejudice at
this time. This order will be sua sponte reexamined as the case proceeds.
ORDERED this 10th day of September, 2014.

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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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