Lewis v. McConnell Unit

Filing 33

OPINION AND ORDER GRANTING MOTION FOR LEAVE TO FILE MOTION FOR APPOINTMENT OF COUNSEL AND DENYING MOTION FOR APPOINTMENT OF COUNSEL; 31 MOTION for Appointment of Counsel, 30 MOTION for Leave to File Motion for Appointment of 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
DAMON EARL LEWIS,
Plaintiff,
VS.
MCCONNELL UNIT, et al,
Defendants.

October 13, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:16-CV-124
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OPINION AND ORDER GRANTING MOTION FOR LEAVE TO FILE MOTION
FOR APPOINTMENT OF COUNSEL AND DENYING MOTION FOR
APPOINTMENT OF COUNSEL
Plaintiff's motion for leave to file a motion for appointment of counsel (D.E. 30) is
granted.
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 defendants/prison officials at the McConnell Unit in Beeville, Texas,
were impermissibly denying him access to materials he ordered through the mail (D.E.
1). Plaintiff claims he needs these materials to fight his state court conviction (Id.).
Pending is plaintiff’s motion for appointment of counsel (D.E. 31).
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
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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).
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. According to plaintiff, Defendants
are denying him access to materials he needs to challenge his state court conviction.
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 testimony at the evidentiary hearing and
his pleadings demonstrate he is reasonably articulate and intelligent. Plaintiff appears, at
this early 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. Dispositive motions have not yet been filed.
Finally, there is no indication that appointed counsel would aid in the efficient and
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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. 31)
is denied without prejudice at this time. This order will be sua sponte reexamined as the
case proceeds.
ORDERED this 13th day of October, 2016.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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