Mendez v. Chang

Opinion

Southern District of Texas ENTERED UNITED STATES DISTRICT COURT March 04, 2020 SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk CORPUS CHRISTI DIVISION JESSE MENDEZ, § | Plaintiff, . VS. § CIVIL ACTION NO. 2:18-CV-396 ! P CHANG, et al, | Defendants. | MEMORANDUM OPINION AND ORDER DENYING MOTION FOR | APPOINTMENT COUNSEL ——~wt | Plaintiff, proceeding pro se and in forma pauperis, is an inmate incarcerated at TDCJ’s Huntsville Unit in Huntsville, Texas. Plaintiffs claims against medical personnel while incarcerated at the Garza Unit in Beeville, Texas, for Eighth Amendment violations are the only claims that have survived motions to dismiss (See D.E. 25). | Pending is Plaintiff's motion for appointment of counsel (D.E. 27). In Bounds v. Smith, the Supremé 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 (Sth Cir. 1994); Branch v. Cole, 686 F.2d 264, 266 (Sth Cir. 1982), | Further, Bounds did not create a "free-standing right to a law library or legal assistance." | Lewis v. Casey, 116 8S. Ct. 2174, 2180 (1996). It is within the court's discretion to

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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 (Sth 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 (Sth 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. Plaintiff claims he received | inadequate medical care while at the Garza Unit. Though serious, plaintiffs allegations are not complex. i. 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, and able to describe the facts underlying his claims. His

testimony during an evidentiary hearing revealed that he understands his claims and can : investigate and present his case. Plaintiff has been able to obtain legal materials from the law library, cite cases in his briefs, make discovery requests, and he can also request the

assistance of other inmates. He appears 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. dd. Examination of this factor is premature because the case | has not yet been set for trial. Dispositive motions have not yet been filed and a trial date | has not been set.

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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 2 hiring an attorney on a contingent-fee arrangement. Plaintiff's motion for appointment of counsel (D.E. 27) is denied without prejudice at this time. This order will be sua sponte | reexamined as the case proceeds. | ORDERED this 4th day of March, 2020.

\ roy Lb. Julie K. Hatypfon TON United States Magistrate Judge | 3/3