Swyck v. Davis et al

Filing 23

ORDER Granting 11 Motion to Amend; ORDER Denying 13 Motion for Production of Documents; denying 15 Motion to Appoint ; denying 16 Motion; denying 17 Motion for Leave to File; denying 17 Motion for Discovery; denying 18 Motion for Extension of Time; denying 21 Motion; denying 22 Motion to Appoint. Plaintiff may amend his failure to protect claim on or before February 8, 2017.(Signed by Magistrate Judge Jason B Libby) Parties notified.(sscotch, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GARY SWYCK,
Plaintiff,
VS.
LORIE DAVIS, et al,
Defendants.

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January 10, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:16-CV-489

ORDER
On November 14, 2016, Plaintiff, proceeding pro se and in forma pauperis, filed
this prisoner civil rights action. (D.E. 1). On December 8, 2016, the undersigned entered
a Memorandum and Recommendation (“M & R”) recommending Plaintiff’s Eighth
Amendment failure to protect claim against Major James McKee in his individual
capacity be retained. (D.E. 8). The undersigned also entered a service order the same
day, giving Defendant forty-five (45) days to file a responsive pleading. (D.E. 8, Page 1).
Between December 27, 2016 and January 6, 2016, Plaintiff filed eight motions,
including a Motion to Amend, for Discovery, for Appointment of Counsel, for Extension
of Time, for Physical and Mental Examination, and for Appointment of Expert Witness.
(D.E. 11, D.E. 13, D.E. 15, D.E. 16, D.E. 17, D.E. 18, D.E. 21, and D.E. 22). All of
Plaintiff’s Motions are DENIED (D.E. 13, D.E. 15, D.E. 16, D.E. 17, D.E. 18, D.E. 21,
and D.E. 22), with the exception of Plaintiff’s Motion to Amend, which is GRANTED as

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follows. (D.E. 11). Plaintiff may amend his failure to protect claim on or before
February 8, 2017.
Plaintiff’s Motions for Discovery (D.E. 13, D.E. 17 and D.E. 21) are DENIED as
premature. Defendant has not yet filed a responsive pleading in this matter. After
Defendant has filed a responsive pleading, the undersigned will enter a scheduling order
which will include a discovery period. Plaintiff will receive a copy of this scheduling
order once it is entered.

During the discovery period, Plaintiff should submit his

discovery requests to counsel for Defendant, rather than the Court.
Pending is Plaintiff’s Motion for Appointment of Counsel. (D.E. 15). Also
pending is Plaintiff’s Motion for Appointment of Expert Witnesses. (D.E. 22). In both
motions Plaintiff cites to his pro se status and requests counsel and/or witnesses be
appointed to assist him with his case and to protect the integrity of his claim. These
Motions are DENIED. No constitutional right to appointment of counsel exists in civil
rights cases. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Akasike v.
Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994) (per curiam). A district court is not required
to appoint counsel unless “exceptional circumstances” exist. Cupit v. Jones, 835 F.2d 82,
86 (5th Cir. 1987) (quoting Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir.
1986) (per curiam)). The Fifth Circuit has enunciated several factors that the Court
should consider in determining whether to appoint counsel:
(1) the type and complexity of the case; (2) whether the
indigent is capable of adequately presenting his case; (3)
whether the indigent is in a position to investigate adequately
the case; and (4) whether the evidence will consist in large
part of conflicting testimony so as to require skill in the
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presentation of evidence. The court should also consider
whether appointed counsel would aid in the efficient and
equitable disposition of the case.
Jackson, 811 F.2d at 262 (citing Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982));
accord Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997). Upon careful
consideration of the factors set forth in Jackson, the Court finds that appointment of
counsel is not warranted at this time. Regarding the first factor, Plaintiff’s civil rights
claims do not present any complexities that are unusual in prisoner actions. The second
and third factors are whether the plaintiff is in a position to adequately investigate and
present his case.

Plaintiff has thus far demonstrated he is able to communicate

adequately and file pleadings with the Court. The fourth factor requires an examination of
whether the evidence will consist in large part of conflicting testimony so as to require
skill in the presentation of evidence. Plaintiff’s action has not been scheduled for trial;
consequently, at this time, the appointment of counsel for trial would be premature.
Finally, there is no indication that appointing counsel would aid in the efficient and
equitable disposition of the case.

Therefore, Plaintiff’s Motion for Appointment of

Counsel is DENIED without prejudice. (D.E. 15).
Further, to the extent Petitioner is requesting medical expert witnesses be
appointed (D.E. 22), this Motion is DENIED as the purpose of Rule 706 of the Federal
Rules of Evidence is to appoint a neutral expert to assist the finder of fact because of the
medical issues involved, not an expert witness as an advocate for Plaintiff. Bailey v.
Cantrell, No. 07-10651, 2008 WL 5068637, *2 (5th Cir. 2008)(The district court did not
abuse its discretion by denying Bailey’s motion for court-appointed medical expert as
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“706(a) contemplates the appointment of an expert to assist the court, but Bailey sought
an expert for his own benefit”)(citation omitted); see also Borden v. United States, 537
Fed. App’x. 570, 575 (5th Cir. 2013)(“706 allows the court to appoint an expert to assist
in its own understanding of the issues, but not for the sole benefit of a party” and “28
U.S.C. § 1915, which governs indigent parties, does not provide for the appointment of
expert witnesses to aid an indigent litigant”)(citing Hannah v. United States, 523 F.3d
597, 600-01 (5th Cir. 2008)). Plaintiff has alleged a constitutional claim for failure to
protect. A trier of fact does not require a medical expert to make such a determination as
the related medical issues presented are not so complex as to require an independent
court-appointed expert at this time. Therefore, Plaintiff’s Motion for Appointment of
Expert Witnesses is DENIED. (D.E. 22).
Also pending is Plaintiff’s Motion for Court Reporter.

(D.E. 16).

Plaintiff

requests the Court record his examination of the jury and all bench conferences. Again,
this Motion is DENIED as premature. No trial has been set. However, Plaintiff should
be aware that all court proceedings, including trials, are recorded.
Lastly, Plaintiff’s Motion for Continuance/Extension of Time is DENIED. (D.E.
18). Plaintiff states he has limited access to legal material and requests an additional
forty-five (45) days to prepare motions. However, a scheduling order has not been
entered in this matter and therefore, no deadlines are currently set.
To the extent Plaintiff is attempting to raise a civil rights action for denial of
access to legal materials, Plaintiff is instructed that to pursue that claim, he must file a
separate civil rights cause of action.
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Again, in sum, Plaintiff’s Motions are DENIED (D.E. 13, D.E. 15, D.E. 16, D.E.
17, D.E. 18, D.E. 21, and D.E. 22). However, Plaintiff’s Motion to Amend is
GRANTED (D.E. 11) and Plaintiff may amend his failure to protect claim on or before
February 8, 2017. Other than an amended complaint, Plaintiff is advised that no further
motions are required at this time.
ORDERED this 10th day of January, 2017.
___________________________________
Jason B. Libby
United States Magistrate Judge

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