Rodriguez v. McMullen et al
ORDER granting 90 Motion to Appoint ; granting 94 Motion to Appoint ; granting 95 Motion for Leave to Appeal in forma pauperis.(Signed by Judge Jeffrey V Brown) Parties notified.(ltrevino, 3)
Case 3:18-cv-00432 Document 97 Filed on 09/07/21 in TXSD Page 1 of 4
United States District Court
Southern District of Texas
September 07, 2021
IN THE UNITED STATES DISTRICT COURTNathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
DAVID GEORGE RODRIGUEZ, TDCJ #00752635, PLAINTIFF,
VIRGIL MCMULLEN, DEFENDANT.
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE.
State inmate David George Rodriguez (TDCJ #752635) has filed a notice of
appeal of this court’s judgment (see Dkts. 88, 89).
He now moves for the
appointment of counsel on appeal to the Fifth Circuit (Dkts. 90, 94). Rodriguez
has also filed a motion for leave to proceed in forma pauperis for purposes of
establishing his eligibility for appointment of counsel on appeal (Dkt. 95).
Application for Leave to Proceed In Forma Pauperis on
As an inmate incarcerated in the Texas Department of Criminal Justice –
Correctional Institutions Division, Rodriguez’s appeal is governed by the Prison
Litigation Reform Act (“PLRA”). The PLRA requires indigent litigants to pay an
initial filing fee followed by the full balance of the appellate docketing fee, which is
$505.00. Because Rodriguez’s appeal does not appear to have been filed in bad
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faith for purposes of Rule 24(a)(3) of the Federal Rules of Appellate Procedure, see
28 U.S.C. § 1915(a)(3), the court ORDERS as follows:
The plaintiff’s motion for leave to proceed in forma pauperis on
appeal (Dkt. 95) is GRANTED.
The plaintiff is assessed an initial partial filing fee of $473.00
pursuant to 28 U.S.C. § 1915(b)(1). The agency having custody of the plaintiff shall
collect this amount from the plaintiff’s inmate trust fund account or institutional
equivalent, when funds are available, and forward it to the court.
Thereafter, the plaintiff shall pay the balance of the appellate
docketing fee ($32.00) in periodic installments as required by 28 U.S.C. §
1915(b)(2). The agency shall collect this amount from the plaintiff’s inmate trust
account and forward it to the court until the entire fee is paid.
The plaintiff is responsible for signing all consents and other
documents required by the agency having custody of plaintiff to authorize the
necessary withdrawal from the plaintiff’s inmate trust account.
Motion for Appointment of Counsel
As noted above, Rodriguez has provided a certified copy of his inmate trust
fund account statement (Dkt. 96). Although the plaintiff’s inmate trust fund
account statement reflects that he has enough funds to pay the appellate filing fee,
this available balance demonstrates that he is unable to afford counsel and that he
qualifies as indigent for purposes of 28 U.S.C. § 1915(e)(1). A district court may
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appoint counsel for an indigent inmate where a case presents exceptional
circumstances. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982);
Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015). Because the assistance
of trained appellate counsel will be of assistance to Rodriguez and to the Fifth
Circuit “by sharpening the issues in the case,” see Ulmer, 691 F.2d at 213, the court
will grant Rodriguez’s motion for appointment of counsel.
Accordingly, it is ORDERED that the following attorney is appointed as
counsel to represent the plaintiff:
Wright Close & Barger
One Riverway, Suite 2200
Houston, TX 77056
This appointment, which may include assistance by one or two associates
under the above-referenced attorney’s supervision, shall remain in effect until
terminated or substitute counsel is appointed. The plaintiff is advised that this
appointment is only for representation at the United States Court of Appeals for
the Fifth Circuit and that appellate counsel is under no obligation to prepare or file
a petition for a writ of certiorari. The plaintiff is further advised to communicate
respectfully and to cooperate with counsel to the best of his ability.
Counsel appointed for plaintiff shall file any necessary motion to appear pro
hac vice along with a notice of appearance on plaintiff’s behalf with the Fifth
Case 3:18-cv-00432 Document 97 Filed on 09/07/21 in TXSD Page 4 of 4
Circuit no later than ten (10) days from the date of this order.
The clerk will provide a copy of this order to the parties.
Signed on Galveston Island this ____ day of
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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