Chacon v. Director UTMB Correctional Manage Health Care

Filing 28

ORDER denying 19 Motion; denying 20 Motion; denying 26 Motion to Appoint. Chacon shall file a response to the Martinez report, which the Court has construed as a motion for summary judgment, within 45 days of the date of this order..(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ROBERT CHACON,
Plaintiff,
VS.
DIRECTOR UTMB CORRECTIONAL
MANAGE HEALTH CARE,
Defendant.

January 16, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:16-CV-161
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ORDER

Plaintiff Robert Chacon (TDCJ #01550395) is a state inmate incarcerated in the
Texas Department of Criminal Justice - Correctional Institutions Division (“TDCJ”), and
he has filed a civil rights lawsuit. In that lawsuit, Chacon alleges that the defendants’
deliberate indifference to his medical needs caused or exacerbated a debilitating stroke
that he suffered during a battery of cardiac tests at the University of Texas Medical
Branch (“UTMB”) in Galveston. Pending before the Court are three motions.
a. The motion for the appointment of counsel
The Texas Attorney General has provided a Martinez report, which the Court has
construed as a motion for summary judgment. Chacon has missed his deadline to
respond; but, before that deadline, he requested that the Court appoint counsel for him.
The Court will deny the motion but will give Chacon an extension of his deadline so that
he can file a pro se response to the defendants’ motion.
There is no automatic constitutional right to appointment of counsel in civil rights
cases. Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). Where a litigant proceeds
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in forma pauperis, the most a court can do is “request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see also Mallard v. United States
District Court for the Southern District of Iowa, 490 U.S. 296, 310 (1989) (holding that
the statute governing in forma pauperis cases does not authorize “coercive appointments
of counsel” for indigent litigants in civil cases). “An attorney should be appointed only if
exceptional circumstances exist.” McFaul v. Valenzuela, 684 F.3d 564, 581 (5th Cir.
2012) (citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982)). In making that
determination, the Court considers the case’s type and complexity, the litigant’s ability to
investigate and present his claims, and the level of skill required to present the evidence.
Baranowski, 486 F.3d at 126.
This case does not present any exceptional circumstances necessitating the
appointment of counsel. Chacon has clearly articulated his claims; the Texas Attorney
General, as previously mentioned, has provided the Court and Chacon with a Martinez
report containing the pertinent medical records; and the legal and factual issues presented
by the case are not extraordinarily complex. The court concludes that it is unnecessary to
locate counsel for Chacon at this time and will deny his motion for the appointment of
counsel. However, the Court will extend Chacon’s deadline and give him 45 days from
the date of this order to respond to the defendants’ motion for summary judgment.
b. The request for a preliminary injunction
Chacon has filed two other motions requesting a preliminary injunction. The Court
will deny those motions as well. In order to obtain a preliminary injunction, Chacon must
demonstrate: (1) a substantial likelihood of success on the merits of an underlying legal
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claim (here, that claim would be his claim for deliberate indifference to his medical needs
during the cardiac tests); (2) a substantial threat that failure to grant the injunction will
result in irreparable injury; (3) that his threatened injury outweighs the threatened harm to
the party whom he seeks to enjoin; and (4) that the injunction will not have an adverse
effect on the public interest. PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d
535, 545 (5th Cir. 2005). “A preliminary injunction is an extraordinary remedy that
should not be granted unless the party seeking it has clearly carried the burden of
persuasion on all four requirements.” Dennis Melancon, Inc. v. City of New Orleans, 703
F.3d 262, 268 (5th Cir. 2012) (quotation marks and citation omitted). Chacon has not
carried his burden.
All three motions (Dkt. 19, Dkt. 20, and Dkt. 26) are DENIED. Chacon shall file a
response to the Martinez report, which the Court has construed as a motion for summary
judgment, within 45 days of the date of this order.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 16th day of January, 2018.
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George C. Hanks Jr.
United States District Judge

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