Martinez v. Nueces County Sheriff's Office/Jail et al
Filing
45
OPINION AND ORDER denying 38 Third Motion to Appoint for Appointment of 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
FRED G. MARTINEZ,
Plaintiff,
VS.
NUECES COUNTY SHERIFF’S
OFFICE/JAIL, et al,
Defendants.
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December 14, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 2:18-CV-158
OPINION AND ORDER DENYING PLAINTIFF’S
THIRD MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Fred G. Martinez, proceeding pro se, has filed this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's Third Motion for
Appointment of Counsel. (D.E. 38).
Plaintiff’s allegations in this case arise in connection with his confinement at the
Nueces County Jail around the time he was sentenced to prison on March 23, 2016.
Plaintiff raised several claims in his amended complaint related to the conditions of his
confinement at the Nueces County Jail. He sought declaratory, injunctive, and monetary
relief.
The undersigned previously has denied Plaintiff’s two motions seeking
appointment of counsel as premature because they were filed before the screening
process had been completed. (D.E. 9, 15). On November 18, 2018, the undersigned
issued a Memorandum and Recommendation, recommending that: (1) Nueces County be
substituted in place of Nueces County Sheriff’s Office/Jail as a party defendant in this
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case; (2) Plaintiff’s deliberate indifference claims with regard to bedding supplies against
Defendants Perales and Zapata in their individual capacities be retained; (3) Plaintiff’s
claims for money damages against certain defendants in their official capacities be
dismissed as barred by the Eleventh Amendment; (4) Plaintiff’s claims for declaratory
and injunctive relief against all Defendants be dismissed as rendered moot by Plaintiff’s
transfer to a TDCJ facility; and (5) Plaintiff’s remaining claims against all Defendants be
dismissed as frivolous and/or for failure to state a claim for relief.
Plaintiff again seeks the appointment of counsel to assist him in the prosecution of
this case. (D.E. 38). Officers Perales and Zapata have filed a motion objecting to any
appointment of counsel for Plaintiff. (D.E. 39).
The Supreme Court has 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).
Furthermore, 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
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Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982)). The first is the type and complexity
of the case. Id. 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. Id. Plaintiff has thus far demonstrated that he is able to
communicate adequately and file pleadings with the Court.
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. Plaintiff’s motion for appointment
of counsel (D.E. 38) is DENIED without prejudice at this time. This order will be sua
sponte reexamined as the case proceeds.
ORDERED this 14th day of December, 2018.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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