Luna v. City of Round Rock et al

Filing 9

ORDER DENYING 3 Motion to Appoint Counsel. Signed by Judge Susan Hightower. (cc3)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOSE VICTOR LUNA,
Plaintiff
v.
CITY OF ROUND ROCK, ROUND
ROCK POLICE DEPARTMENT,
ALLEN BANKS, WILLIE
RICHARDS, JIM STUART,
ANDY MCKINNEY, JUSTIN
CARMICHAEL, BEN B. JOHNSON,
JOHNATHAN A. MINER, SHELBY A.
INGLES, NATHAN J. ZOSS,
KASHEALA L. MAY, MICHAEL A.
CARTER, TRACEY L. COLE, MARC
A. MCCALISTER, AND VERNON A.
ROSSING,
Defendants

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CASE NO. 1:21-CV-00170-RP-SH

ORDER
Before the Court are Plaintiff’s Complaint (Dkt. 1), Plaintiff’s Motion for Appointment of
Counsel (Dkt. 3), and Plaintiff’s Application for Permission to File Electronically (Dkt. 4), all filed
February 22, 2021. Also before the Court are Plaintiff’s Incident Reports, filed on April 1, 2021
and April 13, 2021 (Dkts. 6-8). The District Court referred all pending and future motions in this
case to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b), Federal Rule of Civil
Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for
the Western District of Texas.
I.

Section 1915(e)(2) Frivolousness Review

Plaintiff Jose Victor Luna filed a Motion to Proceed In Forma Pauperis seeking leave to file
his Complaint without having to pay the filing fee. Dkt. 2. After reviewing his Application and
financial affidavit in support, the Court found that Luna was indigent and granted him in forma
pauperis status. Dkt. 5. The Court also ordered Luna to submit a More Definite Statement. Id.
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Because Plaintiff has been granted leave to proceed in forma pauperis, the Court is required
by standing order to review his Complaint. A district court may dismiss a complaint filed in forma
pauperis summarily if it concludes that the action is (1) frivolous or malicious; (2) fails to state a
claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). The Court must “accept as true the allegations of the complaint, together with
any reasonable inferences that may be drawn therefrom.” Ryland v. Shapiro, 708 F.2d 967, 969
(5th Cir. 1983). In deciding whether a complaint states a claim, “[t]he court’s task is to determine
whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the
plaintiff’s likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d
383, 387 (5th Cir. 2010).
A claim has facial plausibility “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. A plaintiff’s pro se status does not offer him an “impenetrable shield, for one acting pro se has
no license to harass others, clog the judicial machinery with meritless litigation, and abuse already
overloaded court dockets.” Farguson v. Mbank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Luna brings claims for alleged constitutional violations arising from a traffic stop and
detainment by the City of Round Rock Police Department. Luna has alleged facts that, if true,
might support relief under 42 U.S.C. § 1983. Accordingly, the Court does not recommend that
Luna’s claims be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B) at this time.

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Based on the foregoing, the Court ORDERS the clerk to issue summons in this case. The Court
FURTHER ORDERS the United States Marshals Service to attempt service without pre-payment
of a service fee.
II. Application to File Electronically
Luna, acting pro se, asks the Court to approve his request to become an electronic filing user
in the United States District Court for the Western District of Texas. The Court hereby GRANTS
Plaintiff Victor Luna’s Application for Permission to File Electronically (Dkt. 4).
IT IS ORDERED that Plaintiff may file electronically through the Western District of Texas
Official Court Electronic Document Filing System in this action. IT IS FURTHER ORDERED
that Plaintiff, if he has not already done so, is directed to review the “General Information” section
on the “CM/ECF” tab on United States District Court for the Western District of Texas’s website
(www.txwd.uscourts.gov). IT IS FURTHER ORDERED that Plaintiff shall submit a completed
United States District Court for the Western District of Texas E-Filing and E-Noticing Registration
Form via email to the email address provided on the form ([e-mail]).
III. Appointment of Counsel
Finally, Luna asks the Court to appoint counsel to represent him in this action. Dkt. 3. A
plaintiff has no constitutional right to appointment of counsel in connection with a civil rights
action under § 1983. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). A district court
should consider four factors in ruling on requests for appointment of 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 the case adequately; and

(4)

whether the evidence will consist in large part of conflicting testimony so as
to require skill in the presentation of evidence and cross examination.

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Id. at 213. The district court is not required to appoint counsel for an indigent plaintiff asserting a
civil rights claim absent “exceptional circumstances.” Id. at 212.
The Court has considered the Ulmer factors and concludes that counsel need not be appointed.
While § 1983 cases by their nature are more complex than many other cases, counsel must be
appointed only in exceptional civil rights cases. See Jackson v. Dallas Police Dept., 811 F.2d 260,
262 (5th Cir. 1986) (denying request for appointment of counsel in § 1983 action arising from
arrest and incarceration). Luna has presented motions and filed documents with the Court
adequately. He has offered a detailed recitation of the facts of his case and shown an ability to
investigate and prosecute the case. This does not appear to be an exceptional civil rights case.
Accordingly, the Court DENIES Plaintiff’s Motion for Appointment of Counsel (Dkt. 3).
SIGNED on April 25, 2021.

SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE

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