Jones v. Taylor et al

Filing 55

OPINION AND ORDER denying without prejudice 52 Motion to Appoint ; denying as moot 53 Motion for Leave to Proceed in forma pauperis.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
FRANKLIN JONES,
Plaintiff,
VS.
BUCK TAYLOR, et al,
Defendants.

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§ CIVIL ACTION NO. 2:14-CV-428
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OPINION AND ORDER DENYING WITHOUT PREJUDICE MOTION FOR
APPOINTMENT OF COUNSEL AND DENYING AS MOOT APPLICATION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff, proceeding pro se and in forma pauperis, is an inmate incarcerated at
TDCJ-CID’s Wayne Scott Unit in Angleton, Texas.

Plaintiff claims that while

incarcerated at the McConnell Unit in Beeville, Texas, Captain Buck Taylor used
excessive force against him when he over-tightened hand cuffs. Pending is Plaintiff’s
motion for appointment of counsel (D.E. 52).
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

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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 complex. Plaintiff claims the Defendant
caused injuries to his wrist when he over-tightened the handcuffs placed on plaintiff
following an argument with the Defendant. 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. Id. Plaintiff’s pleadings demonstrate he is reasonably
articulate and intelligent, and able to describe the facts underlying his claims.

His

testimony during an evidentiary hearing revealed that he understands his claims and can
investigate and present his case. Plaintiff has been able to obtain legal materials from the
law library, cite cases in his briefs, make discovery requests, and he can also request the
assistance of other inmates. He appears 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. Id. Examination of this factor is premature because the case
has not yet been set for trial. At this point in the case Defendants have filed their motion
for summary judgment. A trial date has not been set.
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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
counsel (D.E. 52) is denied without prejudice at this time. This order will be sua sponte
reexamined as the case proceeds.
Plaintiff contemporaneously filed with his motion for appointment of counsel an
application for leave to proceed in forma pauperis (D.E. 53). It is assumed that Plaintiff
believed this motion was necessary to demonstrate that he was unable to afford counsel.
The motion is denied as moot and as unnecessary. Plaintiff was permitted to proceed in
forma pauperis in this case, and the court will assume that he continues to be a pauper as
the case proceeds in the District Court.
ORDERED this 30th day of June, 2015.

___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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