Luper v. University Of Texas Medical Branch et al
Filing
17
MEMORANDUM OPINION AND ORDER denying 14 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
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Plaintiff,
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VS.
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UNIVERSITY OF TEXAS MEDICAL §
BRANCH, et al,
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Defendants.
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October 28, 2016
David J. Bradley, Clerk
CHRISTOPHER ALAN LUPER,
CIVIL NO. 2:16-CV-322
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
Plaintiff, proceeding pro se and in forma pauperis, is an inmate incarcerated
TDCJ-CID’s McConnell Unit in Beeville, Texas. He filed this lawsuit pursuant to 42
U.S.C. § 1983, complaining about having medicine given to him that should have abeen
given to a different inmate (D.E. 1). A recommendation to dismiss Plaintiff's claims is
pending, and Plaintiff timely filed objections (D.E. 13, 15). Pending is Plaintiff's motion
for appointment of counsel (D.E. 14).
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."
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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,
defendants gave him unknown medication not prescribed for him on a single occasion
and then denied having done so (D.E. 1). 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 an
evidentiary hearing demonstrate he is reasonably articulate and intelligent. He was able
to file objections to the memorandum and recommendation and to cite case law,
reflecting that he is able to use the law library. 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.
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
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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. 14) is denied without prejudice at this time. This order will be sua sponte
reexamined as the case proceeds.
ORDERED this 28th day of October, 2016.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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