Young v. Moore et al

Filing 38

OPINION AND ORDER denying 37 Motion for Appointment of Counsel.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(srussell, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOE YOUNG,
Plaintiff,
VS.
CANDACE MOORE, et al,
Defendants.

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March 23, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 2:16-CV-392

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
Plaintiff Joe Young, proceeding pro se and in forma pauperis, has filed this civil
rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's Motion
for Appointment of Counsel. (D.E. 37).
The only claim remaining in this case is Plaintiff’s claim that certain defendants
have retaliated against Plaintiff. These defendants have filed a motion for summary
judgment on Plaintiff’s retaliation claim. (D.E. 30). Plaintiff subsequently filed his
response to the summary judgment motion. (D.E. 33). Plaintiff seeks the appointment of
counsel to assist him in litigating his retaliation claim.
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).
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Further, Bounds did not create a “free-standing right to a law library or legal assistance.”
Lewis v. Casey, 518 U.S. 343, 351 (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 Dep’t, 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. Plaintiff’s retaliation claim is 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 various pleadings filed in this case,
including his response to the pending summary judgment motion, reveal that he
understands his claims and is in a position to 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. A dispositive summary judgment motion is currently before
the undersigned on referral.
Plaintiff has not shown that exceptional circumstances require the appointment of
counsel at this time. 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
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for appointment of counsel (D.E. 37) is DENIED without prejudice at this time. This
order will be sua sponte reexamined as the case proceeds.
ORDERED this 23rd day of March, 2018.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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