Mejia v. Ramirez et al, No. 2:2014cv00238 - Document 10 (S.D. Tex. 2014)

Court Description: OPINION AND ORDER denying 7 Motion to Appoint Counsel.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION DONALD MEJIA, Plaintiff, VS. MARIA D RAMIREZ, et al, Defendants. § § § § CIVIL ACTION NO. 2:14-CV-238 § § § § OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL Plaintiff filed this § 1983 lawsuit on June 2, 2014, alleging that Defendants violated his constitutional rights in a number of ways, namely that he was denied nutritious meals, denied recreation, and denied showers, resulting in loss of weight and depression (D.E. 1). Plaintiff has been granted leave to proceed in forma pauperis (D.E. 6), and pending is his motion for appointment of counsel (D.E. 7). In Bounds v. Smith, the Supreme Court held that a prisoner's constitutional right of access to the courts requires that the access be meaningful; that is, prison officials must provide pro se litigants with writing materials, access to the law library, or other forms of legal assistance. Bounds v. Smith, 430 U.S. 817, 829 (1977). There is, however, no constitutional right to appointment of counsel in civil rights cases. Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). Further, Bounds did not create a "free-standing right to a law library or legal assistance." Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). It is 1/3 within the court's discretion to appoint counsel, unless the case presents "exceptional circumstances," thus requiring the appointment. 28 U.S.C. § 1915(e)(1); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). A number of factors should be examined when determining whether to appoint counsel. Jackson v. Dallas Police Department, 811 F.2d 260, 261-62 (5th Cir. 1986) (citing Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982)). The first is the type and complexity of the case. Id. This case is not complex. According to Plaintiff, his health has suffered because he has been denied nutritious meals, not allowed regular exercise, and denied showers. Though serious, plaintiff s allegations are not complex. The second and third factors are whether the plaintiff is in a position to adequately investigate and present his case. Id. Plaintiff s pleadings demonstrate he is reasonably articulate and intelligent. He has clearly set forth his claims. Plaintiff appears, at this early stage of the case, to be in a position to adequately investigate and present his case. The fourth factor which should be examined is whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross-examination. Id. Examination of this factor 2/3 is premature because the case has not yet been set for trial. In fact, the case has yet to be screened an evidentiary hearing is not scheduled until July 29, 2014.1 Finally, there is no indication that appointed counsel would aid in the efficient and equitable disposition of the case. The Court has the authority to award attorneys' fees to a prevailing plaintiff. 42 U.S.C. § 1988. Plaintiff is not prohibited from hiring an attorney on a contingent-fee arrangement. Plaintiff's motion for appointment of counsel (D.E. 7) is denied without prejudice at this time. This order will be sua sponte reexamined as the case proceeds. ORDERED this 9th day of July, 2014. ___________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE 1 The Initial Partial Filing Fee and Collection Order directed Plaintiff not to file motions for appointment of counsel until after his claims were screened (D.E. 6). 3/3

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