Daniels v. Aransas County , et al, No. 2:2008cv00172 - Document 52 (S.D. Tex. 2008)

Court Description: MEMORANDUM OPINION AND ORDER denying 38 Motion to Appoint ; denying 42 Motion to Appoint.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, )

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION THERIN RAY DANIELS, Plaintiff, V. ARANSAS COUNTY, ET AL., Defendants. § § § § § § § CA C-08-172 MEMORANDUM OPINION AND ORDER DENYING SECOND AND THIRD MOTIONS FOR APPOINTMENT OF COUNSEL Plaintiff is an inmate in the Texas Department of Criminal Justice - Institutional Division, currently incarcerated at TDCJ-CID s Willacy Unit in Raymondville, Texas. Proceeding pro se, plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that defendants Aransas County and medical providers for the Aransas County Jail were deliberately indifferent to his serious medical needs. Pending are plaintiff s second and third motions for appointment of counsel (D.E. 38, 42). The motions are denied without prejudice. 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 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 overly complex. According to plaintiff, defendants failed to treat a boil/staph infection which later required a trip to the Emergency Room. 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. Plaintiff s pleadings and his testimony at the evidentiary hearing demonstrate that he is reasonably intelligent, articulate, and able to describe the facts underlying his claims. Plaintiff appears, at this 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. Examination of this factor is premature because the case has not yet been set for trial. Plaintiff states, in his second and third motions, that he has been charged in excess of $25.00 for indigent mail to seek private counsel. Plaintiff has provided no authority for his claim that the court should appoint him a lawyer under these circumstances. 2 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 second and third motions for appointment of counsel (D.E. 38, 42) are denied without prejudice at this time. This order will be sua sponte reexamined as the case proceeds. ORDERED this 11th day of December, 2008. ____________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE 3

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