Cooper v. Capt. Jamison et al

Filing 19

OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL denying 18 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
JOE COOPER,
Plaintiff,
VS.
CAPT. JAMISON, et al,
Defendants.

§
§
§
§ CIVIL ACTION NO. 2:13-CV-190
§
§
§
§

OPINION AND ORDER DENYING
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 the fourteen named defendants violated his constitutional rights in
various ways, primarily by filing false disciplinary claims against him, retaliating against
him, denying him law library access, and interfering with his right of access to the courts
(D.E. 1). Pending is his 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.
1982). Further, Bounds did not create a "free-standing right to a law library or legal
1/3

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 does not appear to be complex. During the
evidentiary hearing, Plaintiff was advised to file an amended complaint setting forth his
claims against each defendant. Plaintiff has not yet complied.
The second and third factors are whether the plaintiff is in a position to adequately
investigate and present his case. Id. Plaintiff’s testimony during the evidentiary hearing
and his pleadings demonstrate he is reasonably articulate and intelligent, he understands
his claims, and he knows how to use the law library. At this stage of this litigation,
plaintiff can 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. Id. Examination of this factor is premature because the case
has not yet been set for trial. In fact, the court is still waiting for plaintiff to file his
amended complaint so that his claims can be screened pursuant to 28 U.S.C. §
1915A.

2/3

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 attorney’s 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 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 1st day of November, 2013.

___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

3/3