Bailey et al v. Livingston et al

Filing 859

MEMORANDUM AND ORDER denying 775 MOTION for Appointment of counsel, and denying 815 MOTION to Vacate. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEITH COLE, et al.,
Plaintiffs,

v.
BRYAN COLLIER, et al.,
Defendants.

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October 13, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-cv-1698

MEMORANDUM AND ORDER

Pending before this Court are Stanley Sherman's Motion for Appointment of Counsel
(Doc. No. 775) and R. Wayne Johnson's Motion to Vacate (Doc. No. 815).
In this case, the Court has been asked by Plaintiffs to require improvements in prison
conditions related to temperature and heat mitigation at the Wallace Pack Unit. On June 14,
2016, the Court certified one general class and two subclasses, which consist of individuals who
currently are or will be incarcerated at the Wallace Pack Unit. (Doc. No. 473.) Mr. Sherman is
incarcerated at the Wallace Pack Unit. Mr. Johnson is incarcerated at the Clements Unit.
For the reasons set forth below, the pending motions of Mr. Sherman and Mr. Johnson
are denied.
I.

Motion for Appointment of Counsel

Mr. Sherman requests that the Court appoint counsel for him and order an investigation
into alleged retaliation against him. (Doc. No. 775 at 2.) Mr. Sherman is a resident of the
Wallace Pack Unit, and is therefore a member of the class in this case. See Doc. No. 473 at
2-3, 22. The alleged retaliation for which Mr. Sherman seeks representation and investigation is

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related to Mr. Sherman's medical care. (Doc. No. 775 at 1-2.) For example, Mr. Sherman states
that he has been retaliated against for "writing up medical" and that he has received insufficient
medication. !d. The issues that Mr. Sherman raises are separate and distinct from Plaintiffs'
claims in this case, which relate to temperature and heat mitigation at the Wallace Pack Unit.
(Doc. No. 629.) To the extent that Mr. Sherman is experiencing retaliation connected to the
claims in this case, class counsel represents Mr. Sherman's interests. See Fed. R. Civ. P.
23(b), (g). The Court does not opine on the merits of Mr. Sherman's claims, rather, this case is
not the proper vehicle for addressing Mr. Sherman's allegations. Mr. Sherman's motion for
appointment of counsel and request for a court order requiring investigation therefore are denied.

II.

Motion to Vacate
Mr. R. Wayne Johnson moves to vacate the Court's memorandum and opinion granting

Plaintiffs' motion for a preliminary injunction (Doc. No. 771) and the Court's order regarding
preliminary injunction remedies (Doc. No. 737). (Doc. No. 815 at 5.) Mr. Johnson is currently
incarcerated in the Clements Unit in Amarillo, Texas. Therefore, he is not a member of the class.
The Court denied Mr. Johnson's prior motion to intervene on May 16, 2017. (Doc. No. 633.)
Mr. Johnson is not a party to this case and thus lacks standing to bring this motion before the
Court.

III.

Conclusion
For the above reasons, Mr. Sherman's Motion for Appointment of Counsel (Doc. No.

775) and Mr. Johnson's Motion to Vacate (Doc. No. 815) are DENIED.

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IT IS SO ORDERED.
SIGNED at Houston, Texas, on this

the~y of October, 2017.

KEITH:LiiSON
UNITED STATES DISTRICT JUDGE

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