Jacobsen v. Officer Fernandez et al

Filing 10

OPINION AND ORDER DENYING 9 Motion for Appoint of Counsel.(Signed by Magistrate Judge B Jance Ellington) Parties notified.(jalvarez, 2)

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United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION STEPHEN RAY JACOBSEN, Plaintiff, VS. OFFICER FERNANDEZ, et al, Defendants. § § § § § § § § August 16, 2017 David J. Bradley, Clerk CIVIL ACTION NO. 2:17-CV-252 OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL Plaintiff is an inmate in the Texas Department of Criminal Justice - Institutional Division, currently incarcerated at TDCJ-CID’s Lopez State Jail in Edinburg, Texas. Proceeding pro se, plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that defendant/prison officials at the Garza East and West Units in Beeville, Texas, failed to protect him from harm at the hand of another inmate resulting in serious injuries (D.E. 1). An evidentiary hearing is scheduled for August 24, 2017. Pending is plaintiff’s motion for appointment of counsel (D.E. 9). 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. 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." 1/3 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 allowed an unescorted inmate to enter his cell to harm him and then attempted to cover up their own mistakes. 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. 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. In fact screening pursuant to 28 U.S.C. §§ 1915 & 1915A has not yet occurred. An evidentiary hearing is scheduled for August 24, 2017. In fact, Plaintiff was instructed not to file motions for appointment of counsel until his case was screened. (D.E. 6 @ Para. 9). 2/3 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 motion for appointment of counsel (D.E. 9) is denied without prejudice at this time. This order will be sua sponte reexamined as the case proceeds. ORDERED this 16th day of August, 2017. ___________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE 3/3

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