Morgan v. Patterson et al

Filing 45

OPINION AND ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR DE NOVO REVIEW denying 38 Motion to Appoint ; denying 40 Motion to Appoint ; denying 40 Motion.(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
JOSEPH RODERICK MORGAN,
Plaintiff,
VS.
MARK PATTERSON, et al,
Defendants.

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ENTERED
October 17, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:17-CV-160

OPINION AND ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL
AND FOR DE NOVO REVIEW
Plaintiff is a federal inmate at the Joe Corley Detention facility in Houston Texas (D.E.
1, 44). Proceeding pro se, plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983
and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)4
alleging that various federal actors and employees at a privately owned detention facility
located in the Corpus Christi Division of the Southern District of Texas, violated his rights
under the United States Constitution. Upon initial screening, a recommendation was made to
the District Judge to Dismiss all of Plaintiff's claims (D.E. 34). Pending are Plaintiff's motions
for appointment of counsel (D.E. 38, 40-1), as well as his motion requesting de novo review of
the Memorandum and Recommendation (D.E. 40-2).
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

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A Bivens action is the federal counterpart of § 1983 and “extends the protections afforded by
§ 1983 to parties injured by federal actors not liable under § 1983.

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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). 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 Cir. 1987).
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.
This case is not overly complex. According to plaintiff, defendants violated his right to
practice his Jewish faith, engaged in anti-semitic behavior, conspired have him placed in a
mental health observation cell, isolated him from others, placed handcuffs on him in a manner
that caused bruising and injuries and failed to sustain his grievances against others. 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 his case.

Id.

Plaintiff’s pleadings demonstrate he is reasonably

articulate and intelligent. Plaintiff appears, at this stage of the case, to be in a position to
adequately investigate and present his case. In his motions (D.E. 38 & 40), Plaintiff appears to
be supplementing his objections to the Memorandum and Recommendation rather than setting
forth reasons why there are exceptional circumstances present to warrant appointment of
counsel. Plaintiff does, however, say that he has not been housed at a facility where he can
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access an adequate law library. Plaintiff has not yet made a request, but in order to solve this
problem, Plaintiff may request an extension of time to supplement his objections to the
Memorandum and Recommendation until he has an opportunity to be designated to and
transferred to a Bureau of Prisons facility with an adequate law library.
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.
Finally, 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 motions for appointment of counsel (D.E. 38, 40-1) are
denied without prejudice at this time. This order will be sua sponte reexamined as the case
proceeds.
Plaintiff also requests de novo review of his objections to the memorandum and
recommendation (D.E. 40-2). The motion is denied as unnecessary, as de novo review is
already required by statute and by court rules. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3).
ORDERED this 17th day of October, 2017.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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