Oakley v. Hudson

Filing 19

ORDER denying without prejudice 18 Motion to Appoint Counsel.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(sscotch, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JIMMY HORACE OAKLEY,
Plaintiff,
VS.
L. HUDSON,
Defendant.

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§ CIVIL ACTION NO. 2:13-CV-102
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MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff is an inmate in the Texas Department of Criminal Justice - Institutional
Division, currently incarcerated at TDCJ-CID’s Polunsky Unit in Livingston, Texas.
Proceeding pro se, plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983,
alleging that the Warden at the Connally Unit failed to protect him from assault by
another inmate and medical officials at the McConnell Unit and UTMB Galveston were
deliberately indifferent to his serious medical needs when treating his jaw, which was
broken during the assault (D.E. 1, 12, 16). Pending is plaintiff’s motion for appointment
of counsel (D.E. 18).
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.
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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. This case is not overly complex. Although 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 he is reasonably
articulate and intelligent. Plaintiff 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 because the case has
not yet been set for trial. In fact, the case has not yet been screened pursuant to the
PLRA. 28 U.S.C. § 1915A. An evidentiary hearing is scheduled for June 27, 2013.
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. 18)
is denied without prejudice at this time. This order will be sua sponte reexamined as the
case proceeds.
ORDERED this 3rd day of June, 2013.

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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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