Ferguson v. Fondanpetesson et al

Filing 21

OPINION AND ORDER denying 20 Motion to Appoint Counsel.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(amireles, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WILLIAM FERGUSON,
Plaintiff,
VS.
GUDLAUG FONDAHN PETERSON, et
al,
Defendants.

§
§
§
§
§
§
§
§
§

August 02, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 2:17-CV-308

OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff William Ferguson, proceeding pro se and in forma pauperis, has filed this
civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's
Motion for Appointment of Counsel. (D.E. 20).
The only claim remaining in this case is Plaintiff’s claim that Officer Gudlaug
Fondahn Peterson acted with deliberate indifference to Plaintiff’s serious medical needs.
Officer Peterson filed his answer on April 20, 2018. (D.E. 16). Plaintiff seeks the
appointment of counsel to assist him in litigating his deliberate indifference claim.
Plaintiff states that he has received assistance in preparing his pleadings by a “Jailhouse
Lawyer,” but that this inmate will no longer be able to assist him due to health reasons.
(D.E. 20, p. 4).
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
1/3

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.”
Lewis v. Casey, 518 U.S. 343, 351 (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 Dep’t, 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. Plaintiff’s deliberate indifference claim is not a complex issue.
The second and third factors are whether the plaintiff is in a position to adequately
investigate and present his case. Id. The undersigned understands Plaintiff’s position
that he has received considerable assistance in preparing various pleadings filed in this
case. Plaintiff further asserts that he does not have a strong educational background and
can barely read. Nevertheless, it appears that Plaintiff adequately prepared his original
complaint without the assistance of another inmate. Overall, he has not shown to date an
inability to adequately investigate and present his deliberate indifference claim, either by
himself or through the assistance of another inmate.
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

2/3

and in cross-examination. Id. Examination of this factor is premature because the case
has not yet been set for trial.
Plaintiff has not shown that exceptional circumstances require the appointment of
counsel at this time. 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. 20) is DENIED without prejudice at this time. This
order will be sua sponte reexamined as the case proceeds.
ORDERED this 2nd day of August, 2018.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

3/3