Williams v. In The United States District of The American et al

Filing 19

ORDER denying without prejudice 13 Motion to Appoint.(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
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Plaintiff,
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VS.
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IN THE UNITED STATES DISTRICT OF §
THE AMERICAN, et al,
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Defendants.
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March 05, 2018
David J. Bradley, Clerk

DONALD RAY WILLIAMS SR,

CIVIL ACTION NO. 2:18-CV-47

ORDER
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). On February 14,
2018, Plaintiff was notified that while he originally filed this action using a petition for
writ of habeas corpus, he was actually seeking relief on a variety of civil rights claims.
(D.E. 17).

The undersigned further noted that Plaintiff has accumulated 13 strikes, at

least three of which included monetary sanctions, for filing frivolous lawsuits as an
inmate and appeared to be attempting to circumvent the three strikes bar to proceed in
forma pauperis. (D.E. 17). As a result, Plaintiff was ordered to pay the $400.00 filing
fee for a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 in full on or before
March 6, 2018 or to file a fully completed motion to proceed in forma pauperis showing
cause why he should not be barred from proceeding in forma pauperis pursuant to the
three strikes rule. On March 2, 2018, Plaintiff filed “Petitioner Request for The Entry of
Payed Filing Fee Default.” (D.E. 18). It appears Plaintiff is requesting this Court contact
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his sister to pay the filing fee.1 Plaintiff’s request is DENIED. Plaintiff is given until
March 19, 2018 to comply with the undersigned’s February 14, 2018. Plaintiff is again
cautioned that if he fails to comply, the Court may dismiss this case for want of
prosecution. Fed. R. Civ. P. 41(b).
Also pending is Plaintiff’s Motion for Appointment of Counsel. (D.E. 6 and 13).
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)
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
1

Plaintiff incorrectly notes the filing fee as $5.00. This action has been construed as a prisoner
civil rights action filed pursuant to 42 U.S.C. § 1983 and therefore, the filing fee is $400.00.
(D.E. 17, Page 2).

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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.
For the foregoing reasons, Plaintiff’s motion for appointed counsel, (D.E. 6 and
D.E. 13), is DENIED without prejudice. The Court will not rule on any additional
motions filed by Plaintiff until he fully complies with this Order.
ORDERED this 5th day of March, 2018.
___________________________________
Jason B. Libby
United States Magistrate Judge

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