Moore v. Doe et al

Filing 26

ORDER denying without prejudice 6 Plaintiff's Motion for Appointment of Counsel.(Signed by Magistrate Judge Jason B Libby) Parties notified.(srussell, 2)

United States District Court
Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
EDWARD MOORE,
Plaintiff,
VS.
JANE DOE, et al,
Defendants.

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July 18, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:17-CV-121

ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff is an inmate in the Texas Department of Criminal Justice.
Proceeding pro se, he filed a civil rights action pursuant to 42 U.S.C. § 1983. (D.E.
1). Pending is his motion for appointment of counsel. (D.E. 6). 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)
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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 that 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.

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However, as the undersigned explained to Plaintiff at the Spears1 hearing on
June 29, 2017, the Court will appoint counsel if the case proceeds to trial or at any
time if the undersigned determines that appointing counsel is appropriate under the
circumstances.
For the foregoing reasons, Plaintiff’s motion for appointed counsel, (D.E. 6),
is DENIED without prejudice.
ORDERED this 18th day of July, 2017.
_________________________________
Jason B. Libby
United States Magistrate Judge

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir.
1996)(stating that testimony given at a Spears hearing is incorporated into the pleadings).

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