Feemster v. Chapa et al

Filing 17

ORDER denying Plaintiff's 12 Motion for Appointment of Counsel.(Signed by Magistrate Judge Jason B Libby) Parties notified.(jalvarez, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
TODD ALAN FEEMSTER,
Plaintiff,
VS.
P. CHAPA, et al,
Defendants.

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October 18, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 6:17-CV-39

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff is an inmate in the Texas Department of Criminal Justice. Proceeding pro
se, he filed a civil rights action pursuant to 42 U.S.C. § 1983. (D.E. 1). Pending is his
motion for appointment of counsel. (D.E. 12). No constitutional right to appointment of
counsel exists in civil rights cases. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir.
2007); Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994) (per curiam). A district
court is not required to appoint counsel unless “exceptional circumstances” exist. Cupit
v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (quoting Jackson v. Dallas Police Dep’t, 811
F.2d 260, 261 (5th Cir. 1986) (per curiam)). The Fifth Circuit has enunciated several
factors that the Court should consider in determining whether to appoint counsel:
(1) the type and complexity of the case; (2) whether the
indigent is capable of adequately presenting his case; (3)
whether the indigent is in a position to investigate adequately
the case; and (4) whether the evidence will consist in large
part of conflicting testimony so as to require skill in the
presentation of evidence. The court should also consider

whether appointed counsel would aid in the efficient and
equitable disposition of the case.
Jackson, 811 F.2d at 262 (citing Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982));
accord Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997). Upon careful
consideration of the factors set forth in Jackson, the Court finds that appointment of
counsel is not warranted at this time. Regarding the first factor, Plaintiff’s civil rights
claims do not present any complexities that are unusual in prisoner actions. The second
and third factors are whether Plaintiff is in a position to adequately investigate and
present his case. Plaintiff has thus far demonstrated that he is able to communicate
adequately and file pleadings with the Court. The fourth factor requires an examination of
whether the evidence will consist in large part of conflicting testimony so as to require
skill in the presentation of evidence. Plaintiff’s action has not been scheduled for trial;
consequently, at this time, the appointment of counsel for trial would be premature.
Finally, there is no indication that appointing counsel would aid in the efficient and
equitable disposition of the case as this stage of the proceedings.
For the foregoing reasons, plaintiff’s motion for appointed counsel, (D.E. 12), is
DENIED without prejudice. However, the Court will appoint counsel if the case
proceeds to trial or if the appointment of counsel otherwise becomes necessary at a later
stage of these proceedings.
ORDERED this 18th day of October, 2017.
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Jason B. Libby
United States Magistrate Judge