Dunsmore v. Burroughs
Filing
41
MEMORANDUM OPINION AND ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL; denying 5 MOTION for Appointment of Counsel, 32 MOTION for Appointment of Counsel, 38 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
RICHARD A DUNSMORE,
Plaintiff,
VS.
SCOTT BURROUGHS,
Defendant.
July 29, 2016
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 2:16-CV-132
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MEMORANDUM OPINION AND ORDER DENYING MOTIONS FOR
APPOINTMENT OF COUNSEL
Plaintiff, proceeding pro se and in forma pauperis, is an inmate incarcerated at the
Texas Department of Criminal Justice- Correctional Institutions Division's (TDCJ-CID’s)
Terrell Unit in Rosharon Texas. He filed a lawsuit in Nueces County alleging that
Defendant Burroughs violated the Fourth Amendment to the United States Constitution
when obtaining a search warrant to search his home, as well as other state claims for
refusal of the Defendant to return personal property to him that was not evidence for a
criminal proceeding (D.E. 1, Exh. 7).
Defendant Burroughs filed his answer and
removed this case to federal court based on the Fourth Amendment claim (D.E. 1, Exh.
9).1 Pending are Plaintiff's motions for appointment of counsel (D.E. 5, 32, 38).
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
The District Court denied Plaintiff's request for a remand and assigned this case to
undersigned for pretrial management (D.E. 36).
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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).
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,
Defendant violated his Fourth Amendment rights when executing a search warrant and
Defendant seized property unrelated to any criminal violation and refuses to return such
property (D.E. 1, Exh. 7). 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. 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.
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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 motions for appointment
of counsel (D.E. 5, 32, 38) are denied without prejudice at this time. This order will be
sua sponte reexamined as the case proceeds.
ORDERED this 29th day of July, 2016.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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