Wilson v. McGinnis et al

Filing 22

OPINION AND ORDER denying 16 Motion for Appointment of Counsel.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WILLIAM M. WILSON,
Plaintiff,
VS.
FRANCES E. MCGINNIS, et al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-204
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OPINION AND ORDER DENYING
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 treat his
sleepwalking episodes (D.E. 1). Pending is his motion for appointment of counsel (D.E.
16).
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 and his testimony during the

evidentiary hearing 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.
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’s claims
survived screening pursuant to 28 U.S.C. § 1915A, but dispositive motions have not yet
been filed. A trial date has not been scheduled, and is not imminent.
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 motion for appointment of

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counsel (D.E. 16) is denied without prejudice at this time. This order will be sua sponte
reexamined as the case proceeds.
ORDERED this 25th day of November, 2013.

___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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