Davis v. Home Depot USA, Inc. et al

Filing 29

ORDER DENYING 26 Motion to Appoint Counsel Signed by Judge Nancy Stein Nowak. (ga)

Davis v. Home Depot USA, Inc. et al

Doc. 29

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION C A R L DWIGHT DAVIS, P la in tif f , v. H O M E DEPOT USA, INC. a n d THE HOME DEPOT, D efe n d a n ts . § § § § § § § § §

C I V I L ACTION NO. SA-09-CA-910-FB

O R D E R DENYING REQUEST FOR APPOINTMENT OF COUNSEL T h is order addresses plaintiff Carl Dwight Davis's motion for appointment of counsel.1 S e c tio n 1915 of Title 28, United States Code, permits the Court to " request an attorney to re p re s e n t any person unable to afford counsel."2 Section 1915 applies when the court permits a p a rty to file a case without prepayment of costs. In this case, Davis did not request in forma p a u p e ris status from this Court because he initially filed his case in state court. Later it was re m o v e d by defendants to federal court. Because Davis did not request in forma pauperis status, s e c tio n 1915 does not authorize the Court to request counsel to represent him. To the extent Davis considers himself indigent and thus eligible under section 1915, the c o u rt considers the following factors in determining whether to appoint an attorney to represent a n indigent party: "(1) the type and complexity of the case, (2) whether the indigent is capable of a d e q u a te ly presenting his case, (3) whether the indigent is in a position to investigate adequately th e case, and (4) whether the evidence will consist in large part of conflicting testimony so as to

1

Docket entry # 26. 28 U.S.C. § 1915(e).

2

Dockets.Justia.com

require skill in the presentation of evidence and in cross examination."3 Consideration of those fa c to rs in this case does not warrant the appointment of counsel. D a v is sued Home Depot USA, Inc. and The Home Depot (together, Home Depot) for n e glige n c e based on alleged damages caused by a falling rug.4 The law and burdens in regard to n e glige n c e claims are well-settled. Davis's allegations present no novel issues of law. Davis is a h igh school graduate and reports some college course work.5 The pleadings Davis has filed since h is attorney withdrew6 indicate Davis is capable of investigating and presenting his case without th e assistance of counsel, to include cross-examining witnesses who may contradict his version of fa c ts . Finally, the Court is mindful that Davis can re-urge his motion at a later stage of this litiga tio n , and the Court may consider appointment of counsel sua sponte if warranted. The m o tio n for appointment of counsel (docket entry #26) is therefore DENIED. W ith this matter resolved, I provide the following instructions to assist Davis in p ro c e e d in g without counsel. In federal court, civil lawsuits are governed by the Federal Rules of C iv il Procedure.7 Compliance with the rules is mandatory. Under the rules, a party to a lawsuit m u s t make initial disclosures under Rule 26, submit to a deposition under Rule 30, answer in te rro ga to rie s from the other party under Rule 33, produce documents requested under Rule 34,

3

Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (citations omitted). Docket Entry # 1, exh. 2. Docket Entry # 26.

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5

See, e.g., docket entry # 21 (responding to the court's order by asking for an extension of time to secure replacement counsel); # 25 (explaining his attorney withdrew after receiving video e v id e n c e that he could work despite his claim that he cannot work).
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6

See Fed. R. Civ. Proc. 1.

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and respond to requests for admission under Rule 36. If a party fails to comply with these re q u ire m e n ts , the court may sanction the party under Rule 37, to include holding the party in c o n te m p t of court. I direct Davis to immediately familiarize himself with the Federal Rules of C iv il Procedure. I also direct Davis to review this district's pro se manual.8 The pro se manual explains the c o u rs e of a lawsuit and discusses a pro se plaintiff's obligations in prosecuting his lawsuit. At th is point, Davis should be familiar with the actions discussed in the Step 2 of the manual. Finally, Davis should familiarize himself with the district's Local Rules, particularly Rule CV-7. Under Rule CV-7, Davis must file a response within eleven days of service of a motion.9 "If th e re is no response filed within the time period prescribed by this rule, the Court may grant the m o tio n as unopposed."10 Defendants filed a motion for summary judgment on August 23, 2010. B e c a u s e Davis may have been unaware of the need to respond to Home Depot's motion for s u m m a ry judgment,11 I extend Davis's deadline for responding to the motion until October 1, 2010. S I G N E D on September 21, 2010. _____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE

8

The pro se manual is available at the clerk's office and at: www.txwd.uscourts.gov.

See Local Rule CV-7(d) ("If any party opposes a motion, the respondent shall file a response and s u p p o r t i n g documents as are then available within eleven (11) days of service of the motion. The re s p o n s e shall contain a concise statement of the reasons and opposition to the motion and citations o f the specific legal authorities upon which the party relies. The response is limited to ten (10) pages u n le s s otherwise authorized by the Court. If there is no response filed within the time period p re s c rib e d by this rule, the Court may grant the motion as unopposed.").
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9

Id. Docket entry # 23.

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