West v. Ruiz et al
Filing
23
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL denying 22 Motion to Appoint.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
ENTERED
September 17, 2018
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL RAY WEST,
Plaintiff,
VS.
SHARON RUIZ, et al,
Defendants.
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David J. Bradley, Clerk
CIVIL ACTION NO. 2:18-CV-170
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Michael Ray West, 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 Second Motion for Appointment of Counsel. (D.E. 22).
On August 24, 2018, the undersigned denied Plaintiff’s first motion for
appointment of counsel without prejudice to renew after the screening process has been
completed. (D.E. 17). On August 28, 2018, the undersigned issued a Memorandum and
Recommendation, recommending that the Court retain Plaintiff’s deliberate indifference
claims against certain defendants in their individual capacities.
(D.E. 19).
The
undersigned ordered service of Plaintiff’s Second Amended Complaint on these
defendants (D.E. 20), who have yet to file an answer in this case. Plaintiff seeks the
appointment of counsel to assist him in litigating his claims in this case. (D.E. 22).
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
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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.”
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 retained in this case are not
complex issues.
The second and third factors are whether the plaintiff is in a position to adequately
investigate and present his case. Id. As review of the record in this case reflects that
Plaintiff has adequately prepared his Second Amended Complaint and presented his
claims therein. Overall, he has not shown to date an inability to adequately investigate
and present his deliberate indifference claims.
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
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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. 22) is DENIED without prejudice at this time. This
order will be sua sponte reexamined as the case proceeds.
ORDERED this 17th day of September, 2018.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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