Oakley v. Hudson
Filing
36
MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE SECOND MOTION FOR APPOINTMENT OF COUNSEL denying 33 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
JIMMY HORACE OAKLEY,
Plaintiff,
VS.
L. HUDSON,
Defendant.
§
§
§
§ CIVIL ACTION NO. 2:13-CV-102
§
§
§
§
MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE
SECOND 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). An evidentiary hearing was held, and all
claims were dismissed except for Plaintiff’s claims against Defendant Lori Hudson (D.E.
20). An order for service of process was entered, and Defendant Hudson has filed her
answer (D.E. 21, 27). Pending is plaintiff’s second motion for appointment of counsel
(D.E. 33).
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
1/3
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. This case is not overly complex. Plaintiff alleges Defendant
Hudson was deliberately indifferent to his serious medical needs when she failed to
provide him appropriate post-operative care after surgery on a broken jaw, and she failed
to ensure that he was timely sent to Hospital Galveston for follow-up care. 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 and his testimony during the
evidentiary hearing demonstrate he is reasonably articulate and intelligent. He has cited
appropriate cases from the law library. Plaintiff appears, at this stage of the case, to be in
a position to adequately investigate and present his case. Plaintiff claims his
2/3
incarceration prevents him from preparing his legal work, but he has adequately
represented himself up to this point in the litigation.
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. Dispositive motions are not due until January 10, 2014.
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. 33) is denied without prejudice at this time. This order will be sua sponte
reexamined as the case proceeds.
ORDERED this 22nd day of October, 2013.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
3/3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?