Copeland v. Ferrell et al
Filing
25
MEMORANDUM OPINION AND ORDER DENYING SECOND MOTION FOR APPOINTMENT OF COUNSEL denying 23 Motion to Appoint.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CURTIS GENE COPELAND,
Plaintiff,
VS.
RONALD FERRELL, et al,
Defendants.
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§ CIVIL ACTION NO. 2:13-CV-100
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MEMORANDUM OPINION AND ORDER DENYING SECOND 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 failure of medical personnel to provide him with
dentures (D.E. 1). Pending is his second motion for appointment of counsel (D.E. 23).
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. 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, 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 states he is not able to visit the law library because he is in administrative
segregation, but he is able to obtain legal materials from the law library by request, and
he can also request the assistance of other inmates.
Plaintiff’s case is scheduled for an evidentiary hearing on June 27, 2013, and he is
not permitted to conduct discovery or request a lawyer until after that hearing is
completed and his claims are screened. At the evidentiary hearing, plaintiff will be
required to answer questions about the facts that form the basis for his claims. He does
not need to produce records or evidence. He does not need a lawyer for the evidentiary
hearing. He can ask questions about the discovery process at that time.
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 because the case has
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not been set for trial; in fact plaintiff’s claims have not yet been screened pursuant to 28
U.S.C. § 1915A.
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 on a contingent-fee arrangement.
Plaintiff's second motion for
appointment of counsel (D.E. 23) is denied without prejudice at this time. This order will
be sua sponte reexamined as the case proceeds.
ORDERED this 20th day of June, 2013.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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