Dickerson v. Victoria County Sheriff's Office

Opinion

UNITED STATES DISTRICT COURT November 03, 2020 David J. Bradley, Clerk SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION

RUDY DICKERSON, § § Plaintiff, § VS. § CIVIL ACTION NO. 6:19-CV-84 § VICTORIA COUNTY SHERIFF’S § OFFICE, et al, § § Defendants. §

ORDER DENYING MOTION TO APPOINT COUNSEL

Plaintiff, Rudy Dickerson, is a prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division (“TDCJ-CID”), and is currently incarcerated at the Cotulla Unit in Cotulla, Texas. He filed a complaint under 42 U.S.C. § 1983 alleging violations of his civil rights. Pending is plaintiff’s motion for appointment of counsel (D.E. 32). 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. 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 demonstrate that he is reasonably intelligent, articulate, and able to describe the facts underlying his claims. He 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. No trial is set. In fact, Defendants have yet to file a response to this lawsuit. Plaintiff has not shown that exceptional circumstances require the appointment of counsel. In addition, 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. 32) is DENIED without prejudice at this time. This order will be sua sponte reexamined as the case proceeds.

ORDERED this 3rd day of November, 2020. _ \ JulieK.Hamplon United States Magistrate Judge

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