Richardson v. Livingston et al

Filing 61

MEMORANDUM OPINION AND ORDER denying 60 Motion to Appoint Counsel.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BRANDON RICHARDSON,
Plaintiff,
VS.
BRAD LIVINGSTON, et al,
Defendants.

May 26, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:14-CV-464
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MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
Plaintiff, proceeding pro se and in forma pauperis, is an inmate incarcerated at
TDCJ-CID’s McConnell Unit in Beeville, Texas. He filed this lawsuit pursuant to 42
U.S.C. § 1983, complaining that Defendants were deliberately indifferent to his serious
medical needs (D.E. 1). Pending is his motion for appointment of counsel (D.E. 60).
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 requiring the
appointment. 28 U.S.C. § 1915(e)(1); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
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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. According to plaintiff,
Defendants failed to provide proper medical treatment to him and deliberately injured
him when he was unable to get to the medical department without assistance. 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 and his testimony during the
evidentiary hearing demonstrate he is reasonably articulate and intelligent. Plaintiff
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. Id. Examination of this factor is premature because the case
has not yet been set for trial.
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. Plaintiff’s claims
have not yet been set for trial.
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
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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. 60) is denied without prejudice at this time. This order will be sua sponte
reexamined as the case proceeds.
ORDERED this 26th day of May, 2016.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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