Sanders v. United States of America et al

Filing 37

ORDER denying 34 Motion for Leave to Proceed in forma pauperis; denying 35 Motion to Transfer Case ; denying 36 Motion to Appoint.(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CHRISTOPHER SANDERS,
Plaintiff,
VS.
UNITED STATES OF AMERICA, et al,
Defendants.

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January 09, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 2:17-CV-87

ORDER
Pro se Plaintiff Christopher Sanders filed this prisoner civil rights complaint
pursuant to 42 U.S.C. § 1983 and the undersigned has entered a Memorandum and
Recommendation that this case be dismissed.

(D.E. 1 and D.E. 12).

Pending are

Plaintiff’s third Motion to Proceed In Forma Pauperis and his third Motion to Transfer.
(D.E. 34 and D.E. 35).

Both Motions are DENIED for the reasons stated in the

undersigned’s December 26, 2017 and December 28, 2017’s Orders. (D.E. 29 and D.E.
33).
Additionally, Plaintiff has filed a Motion for Appointment of Counsel. (D.E. 36).
Plaintiff cites to his pro se status and requests counsel be appointed to assist him with his
case. The Motion is 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
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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
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 as the undersigned, upon screening, has recommended
Plaintiff’s complaint be dismissed for failure to state a claim and/or as frivolous pursuant
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to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). (D.E. 12). Therefore, Plaintiff’s Motion
for Appointment of Counsel is DENIED without prejudice. (D.E. 36).
ORDERED this 9th day of January, 2018.
___________________________________
Jason B. Libby
United States Magistrate Judge

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