Haverkamp v. Penn et al
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL denying 31 Motion to Appoint.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DAVID ALLEN HAVERKAMP; aka
BOBBIE LEE HAVERKAMP,
JOSEPH PENN, et al,
May 11, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 2:17-CV-18
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 Stiles Unit in Beaumont, Texas. Plaintiff filed this lawsuit pursuant to 42
U.S.C. § 1983, complaining that Plaintiff is discriminated against because he has been
diagnosed with a gender identity disorder, but medical officials are refusing to provide
gender reassignment surgery (D.E. 1). 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
constitutional right to appointment of counsel in civil rights cases.
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
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. 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 the case. Plaintiff’s pleadings demonstrate that Plaintiff is very
intelligent, articulate, and able to describe the facts underlying the claims in this lawsuit.
Plaintiff appears, at this stage of the case, to be in a position to adequately investigate and
present the case. Plaintiff has filed several motions and cited to cases demonstrating that
Plaintiff knows how to use the law library. Plaintiff also can also request assistance from
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. Examination of this factor is premature. Plaintiff’s claims
have not yet been scheduled for trial. Two preliminary motions to dismiss are pending.
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 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 11th day of May, 2017.
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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