Garrett v. Thaler
Filing
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MEMORANDUM OPINION AND ORDER denying 4 MOTION for Appointment of Counsel (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL GARRETT,
Plaintiff,
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v.
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RICK THALER, Director, TDCJ-CID, ET AL.,
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Defendants.
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Cause No. 2:13cv70
MEMORANDUM OPINION AND ORDER DENYING
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Michael Garrett 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 March 13, 2013, he filed this civil rights action pursuant to 42
U.S.C. § 1983 alleging that Director Thaler, Regional Director Eileen Kennedy, and Senior
Wardens Currie and Monroe, TDCJ-CID officials, have violated his Constitutional rights in
various ways (D.E. 1). 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 and articulate. His case will be scheduled for an evidentiary hearing where these
factors can be further evaluated. 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. Examination of this factor is premature. Plaintiff has not yet paid the
filing fee or submitted a completed in forma pauperis application. If plaintiff’s claims
survive initial screening and summary judgment and a trial is ordered, this factor will be
considered.
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
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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 13th day of March, 2013.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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