Weaver v. Echevarry et al
Filing
25
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL denying 23 Motion to Appoint.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOSEPH F. WEAVER,
Plaintiff,
VS.
ERICK ECHEVARRY, et al,
Defendants.
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August 10, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 2:17-CV-388
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Joseph F. Weaver, a prisoner proceeding pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that his rights
under the Eighth Amendment were violated by defendants Erick Echevarry, Susanna
Corbett, and Irene Cussins when they deliberately failed to provide him with proper
medical care. On July 19, 2017, a Memorandum and Recommendation (M&R) was
entered, recommending that the District Court: (1) deny a motion to dismiss filed by
Defendants Cussins and Corbett; and (2) grant a motion to dismiss filed by Defendant
Echevarry. (D.E. 20). Plaintiff has filed objections to the M&R (D.E. 24), which are
currently pending before the District Judge.
Plaintiff seeks the appointment of counsel to assist him in the prosecution of this
case.
(D.E. 23).
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).
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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 claims do not involve complex issues.
The second and third factors are whether the plaintiff is in a position to adequately
investigate and present his case. Id. Plaintiff’s pleadings and arguments presented in
responding to Defendants’ motions to dismiss and filing objections to the M&R reveal
that he understands his claims and is in a position to 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.
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
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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. 23) is DENIED without prejudice at this time. This
order will be sua sponte reexamined as the case proceeds.
ORDERED this 10th day of August, 2018.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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