Jimenez v. Teague et al
ORDER DENYING 79 Motion to Appoint Counsel Signed by Judge David A. Ezra. (wg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SGT. CHRIS TEAGUE, CHIEF LEE §
MCVAY, HONDO POLICE OFFICER, §
and MEDINA COUNTY DEPUTY
CV. NO. 5:13-CV-876-DAE
ORDER DENYING PETITION FOR APPOINTMENT OF COUNSEL
Before the Court is a Third Petition for Appointment of Counsel filed
by pro se Plaintiff Bobby Jimenez (“Jimenez”) (Dkt. # 79).1 Pursuant to Local
Rule 7(h), the Court finds this matter appropriate for disposition without a hearing.
For the reasons that follow, the Court DENIES Jimenez’s motion (Dkt. # 79).
The Court notes that this request is in fact Jimenez’s second Petition for
Appointment of Counsel in this case. Magistrate Judge John W. Primomo issued
an order denying his first motion for appointment of counsel on October 22, 2013
without prejudice to refiling if Jimenez was able to state a claim for relief. (Dkt.
# 8.) Although Jimenez refiled a motion for appointment of counsel in his second
and somewhat related civil rights case in this Court (No. 5:13-cv-877), he did not
reurge the motion in this case.
Jimenez’s motion arises out of his suit against Sergeant Chris Teague
(“Teague”) of the Castroville Police Department, Castroville Police Chief Lee
McVay (“McVay”), the Castroville Police Department, and the City of Castroville
(collectively, “Defendants”) for alleged constitutional violations that occurred
when he was allegedly transported in an excrement-littered K–9 unit cage. (Dkt.
# 12 at 4–7.) On January 8, 2015, this Court adopted the Magistrate Judge’s
Memorandum and Recommendation, thereby dismissing the claims against
McVay, the Castroville Police Department, and the City of Castroville. (Dkt.
# 74.) Accordingly, the only live claim that remains is Jimenez’s § 1983 claim
against Teague, which is set for trial in late June 2015. (Dkt. # 75.) On April 3,
2015, Jimenez filed the instant Petition for Appointment of Counsel (Dkt. # 79).
“There is no general right to counsel in civil rights actions,” and
appointment of counsel is only appropriate in exceptional circumstances. McFaul
v. Valenzuela, 684 F.3d 564, 581 (5th Cir. 2012) (citing Cupit v. Jones, 835 F.2d
82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982)). In
determining whether the circumstances are exceptional, district courts consider
(1) the type and complexity of the case, (2) the litigant’s ability to investigate and
present the case, and (3) the level of skill required to present the evidence.
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007) (quoting Castro Romero v.
Becken, 256 F.3d 349, 353–54 (5th Cir. 2001)). District courts may also consider
whether the appointment of counsel would be a service to the litigants and the
court itself “by sharpening the issues in the case, shaping the examination of
witnesses, and thus shortening the trial and assisting in a just determination.”
Ulmer, 691 F.2d at 213.
Jimenez asks the Court to appoint an attorney to represent him
because his imprisonment limits his ability to research and investigate the complex
issues in his case, especially because TDCJ has removed 42 U.S.C.A. 1983 from
its library; he must handwrite his pleadings because he has no access to a
typewriter or computer, thereby slowing his efforts to properly prepare his
pleadings; the trial will involve conflicting testimony; he lacks the requisite
medical training and knowledge, as well as the ability to find a medical expert, to
present his skin disorder; and he requires an attorney to take depositions and to
represent him in the deposition that Teague requests of him. (Dkt. # 79.) The
Court considers each of the relevant factors below.
Type and Complexity of Case
At this stage of the litigation, the only claim remaining is the § 1983
claim against Teague in his individual capacity, which alleges that Teague
transported Jimenez in a small, excrement-littered dog cage for ninety minutes in
violation of the Fourteenth Amendment. (Dkt. # 74 at 8.) This Court and
Magistrate Judge Primomo have laid out the applicable legal standards for this
claim; all that remains is a resolution of the factual issues and a decision as to
whether those facts amount to punishment in violation of the Fourteenth
Amendment. Given the relative simplicity of the remaining claim, this factor
weighs against appointment of counsel.
Ability to Adequately Investigate and Present Case
Since filing this action in October 2013, Jimenez has adequately
investigated and presented his case, despite the computer and library limitations
that Jimenez has outlined in his motion. As Magistrate Judge Primomo noted in
Jimenez’s other action pending before this Court, Jimenez has obtained a GED, has
obtained 150 hours of college credits, and suffers from no linguistic, physical, or
mental impairment that would affect his ability to litigate the case. Order, Jimenez
v. Brown, No. 5:13-CV-877-DAE, Dkt. # 55, at 2 (W.D. Tex. Mar. 7, 2014).
Despite Jimenez’s interest in deposing witnesses, depositions are not a requirement
of successful litigation, especially when the matter has passed the summary
judgment phase and is proceeding to trial. Similarly, the mere fact that Jimenez
might be deposed by Teague is not sufficient to warrant appointment of counsel.
Accordingly, this factor weighs against appointment of counsel.
Level of Skill Required to Present Evidence
The Court agrees with Jimenez that the case will likely involve
conflicting testimony on the issue of whether the dog cage contained animal
excrement. As in every case with conflicting testimony, the experience of a skilled
attorney would be of assistance to the litigant. Moreover, medical evidence may
be relevant to this case, insofar as it could show that the rash is consistent with the
type of reaction a person might have had to the alleged conditions of
transportation. Accordingly, this factor weighs in favor of appointment of counsel.
Service to the Litigants and Court
Given the relatively limited scope of the issue remaining for trial, the
Court does not find that this case would benefit in any unusual way from
appointment of counsel. Accordingly, this factor weights against appointment of
In sum, all factors, except cross-examination of witnesses, weigh
against the appointment of counsel. Even with respect to cross-examination, the
Court does not consider the issues particularly exceptional: Jimenez will face the
same challenges that many other pro se litigants face in going to trial on a civil
rights complaint. Accordingly, the Court finds that this is not the type of
extraordinary case warranting the appointment of counsel.
For the foregoing reasons, the Court DENIES Jimenez’s Third
Petition for Appointment of Counsel (Dkt. # 79).
IT IS SO ORDERED.
DATED: San Antonio, Texas, April 7, 2015.
David Alan Ezra
Senior United States Distict Judge
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