Broussard v. Stephens et al

Filing 21

ORDER denying 19 Motion to Appoint ; granting 20 Motion for Leave to File.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BRAD BROUSSARD,
Plaintiff,
VS.
WILLIAM STEPHENS, et al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-211
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ORDER ON PLAINTIFF’S MOTION
FORAPPOINTMENT OF COUNSEL AND
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Pending are Plaintiff’s Motion for Appointment of Counsel (D.E. 19) and
Plaintiff’s Motion for Leave to File Amended Complaint (D.E. 20). For the reasons stated
below, Plaintiff’s Motion for Appointment of Counsel (D.E. 19) is DENIED without
prejudice and Plaintiff’s Motion for Leave to File Amended Complaint (D.E. 20) is
GRANTED.
I.

Background.
Plaintiff is an inmate in the Texas Department of Criminal Justice, Criminal

Institutions Division (“TDCJ-CID”) currently housed at the at the McConnell Unit in
Beeville, Texas. Plaintiff, a practicing Muslim, is prohibited from wearing a beard under
current TDCJ policy. Plaintiff filed this civil action seeking a declaratory judgment
finding that the TDCJ grooming policy violates his right to practice his religion under the
provisions of the Religious Land Use and Institutionalized Persons Act (“RLUPIA”), 42

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U.S.C. § 2000cc. In the pending motions, plaintiff requests court appointed counsel and
leave to file an amended complaint.
II.

Discussion.
With regard to Plaintiff’s motion for appointment of counsel, no constitutional

right to appointment of counsel exists in civil rights cases. See Baranowski v. Hart, 486
F.3d 112, 126 (5th Cir. 2007); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994)
(per curiam). A district court is not required to appoint counsel unless “‘exceptional
circumstances’” exist. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (quoting Jackson v.
Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986) (per curiam)). The Fifth Circuit
has enunciated several factors that the Court should consider in determining whether to
appoint counsel:
(1) the type and complexity of the case; (2) whether the
indigent is capable of adequately presenting his case; (3)
whether the indigent is in a position to investigate adequately
the case; and (4) whether the evidence will consist in large
part of conflicting testimony so as to require skill in the
presentation of evidence. The court should also consider
whether appointed counsel would aid in the efficient and
equitable disposition of the case.
Jackson, 811 F.2d at 262 (citing Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982));
accord Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997).
Upon careful consideration of the factors set forth in Jackson, the Court finds that
appointment of counsel is not warranted at this time. Regarding the first factor, plaintiff’s
claims do not present any complexities that are unusual in prisoner actions. The second
and third factors are whether the plaintiff is in a position to adequately investigate and
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present his case. Plaintiff has thus far demonstrated that he is able to communicate
adequately and file pleadings with the Court. The fourth factor requires an examination of
whether the evidence will consist in large part of conflicting testimony so as to require
skill in the presentation of evidence. Plaintiff’s action has not been scheduled for trial;
consequently, at this time, the appointment of counsel for trial would be premature.
Finally, there is no indication that appointing counsel would aid in the efficient and
equitable disposition of the case. However, should this case proceed to trial, the Court
will sua sponte reconsider Plaintiff’s motion for appointment of counsel. Therefore,
Plaintiff’s Motion for Appointment of Counsel (D.E. 19) is DENIED without prejudice.
Regarding Plaintiff’s Motion for Leave to File Amended Complaint (D.E. 20),
Rule 15(a), Fed.R.Civ.P., mandates that leave to amend “be freely given when justice so
requires.” Determining when justice requires permission to amend rests within the
discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Nilsen v. City of Moss Point, Miss., 621 F.2d
117, 122 (5th Cir.1980). In exercising its discretion in considering a motion to amend a
complaint, the district court may consider, among other factors, undue delay, dilatory
motive on the part of the movant, and undue prejudice to the opposing party by virtue of
allowing the amendment. Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1024 (5th
Cir.1981).
In the motion to Amend, Plaintiff explains that he is seeking to drop or otherwise
relinquish his request to wear a “fist-full” length beard and be allowed to wear a quarter
inch beard. In sum, Plaintiff is seeking to wear a beard, but a shorter beard than he
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originally sought. Plaintiff sites Garner v. Gutierrez, 713 F.3d 237, 247 (5th Cir. 2013)
where the Fifth Circuit concluded that the TDCJ’s grooming policy prohibiting Muslim
prisoners from wearing a quarter-inch beard violates RLUIPA. Plaintiff’s requested
amendment to the complaint does not cause delay or otherwise burden the Defendant and
is, therefore, GRANTED.
For the foregoing reasons, Plaintiff’s motion for appointment of counsel (D.E. 19),
is DENIED without prejudice and Plaintiff’s Motion for Leave to File Amended
Complaint (D.E. 20) is GRANTED.
ORDERED this 30th day of December, 2013.

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Jason B. Libby
United States Magistrate Judge

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