United States District Court, S.D. Texas, Corpus Christi Division
B. Libby United States Magistrate Judge.
November 14, 2016, Plaintiff, proceeding pro se and
in forma pauperis, filed this prisoner civil rights
action. (D.E. 1). On December 8, 2016, the undersigned
entered a Memorandum and Recommendation (“M &
R”) recommending Plaintiff's Eighth Amendment
failure to protect claim against Major James McKee in his
individual capacity be retained. (D.E. 8). The undersigned
also entered a service order the same day, giving Defendant
forty-five (45) days to file a responsive pleading. (D.E. 8,
December 27, 2016 and January 6, 2016, Plaintiff filed eight
motions, including a Motion to Amend, for Discovery, for
Appointment of Counsel, for Extension of Time, for Physical
and Mental Examination, and for Appointment of Expert
Witness. (D.E. 11, D.E. 13, D.E. 15, D.E. 16, D.E. 17, D.E.
18, D.E. 21, and D.E. 22). All of Plaintiff's Motions are
DENIED (D.E. 13, D.E. 15, D.E. 16, D.E. 17, D.E. 18, D.E. 21,
and D.E. 22), with the exception of Plaintiff's Motion to
Amend, which is GRANTED as follows. (D.E. 11). Plaintiff may
amend his failure to protect claim on or before February 8,
Motions for Discovery (D.E. 13, D.E. 17 and D.E. 21) are
DENIED as premature. Defendant has not yet filed a responsive
pleading in this matter. After Defendant has filed a
responsive pleading, the undersigned will enter a scheduling
order which will include a discovery period. Plaintiff will
receive a copy of this scheduling order once it is entered.
During the discovery period, Plaintiff should submit his
discovery requests to counsel for Defendant, rather than the
is Plaintiff's Motion for Appointment of Counsel. (D.E.
15). Also pending is Plaintiff's Motion for Appointment
of Expert Witnesses. (D.E. 22). In both motions Plaintiff
cites to his pro se status and requests counsel
and/or witnesses be appointed to assist him with his case and
to protect the integrity of his claim. These Motions are
DENIED. No constitutional right to appointment of counsel
exists in civil rights cases. See Baranowski v.
Hart, 486 F.3d 112, 126 (5th Cir. 2007); Akasike v.
Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994) (per
curiam). A district court is not required to appoint counsel
unless “exceptional circumstances” exist.
Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987)
(quoting Jackson v. Dallas Police Dep't, 811
F.2d 260, 261 (5th Cir.1986) (per curiam)). The Fifth Circuit
has enunciated several factors that the Court should consider
in determining whether to appoint counsel:
(1) the type and complexity of the case; (2) whether the
indigent is capable of adequately presenting his case; (3)
whether the indigent is in a position to investigate
adequately the case; and (4) whether the evidence will
consist in large part of conflicting testimony so as to
require skill in the presentation of evidence. The court
should also consider whether appointed counsel would aid in
the efficient and equitable disposition of the case.
Jackson, 811 F.2d at 262 (citing Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982));
accord Norton v. Dimazana, 122 F.3d 286, 293 (5th
Cir. 1997). Upon careful consideration of the factors set
forth in Jackson, the Court finds that appointment
of counsel is not warranted at this time. Regarding the first
factor, Plaintiff's civil rights claims do not present
any complexities that are unusual in prisoner actions. The
second and third factors are whether the plaintiff is in a
position to adequately investigate and present his case.
Plaintiff has thus far demonstrated he is able to communicate
adequately and file pleadings with the Court. The fourth
factor requires an examination of whether the evidence will
consist in large part of conflicting testimony so as to
require skill in the presentation of evidence.
Plaintiff's action has not been scheduled for trial;
consequently, at this time, the appointment of counsel for
trial would be premature. Finally, there is no indication
that appointing counsel would aid in the efficient and
equitable disposition of the case. Therefore, Plaintiff's
Motion for Appointment of Counsel is DENIED without
prejudice. (D.E. 15).
to the extent Petitioner is requesting medical expert
witnesses be appointed (D.E. 22), this Motion is DENIED as
the purpose of Rule 706 of the Federal Rules of Evidence is
to appoint a neutral expert to assist the finder of fact
because of the medical issues involved, not an expert witness
as an advocate for Plaintiff. Bailey v. Cantrell,
No. 07-10651, 2008 WL 5068637, *2 (5th Cir. 2008)(The
district court did not abuse its discretion by denying
Bailey's motion for court-appointed medical expert as
“706(a) contemplates the appointment of an expert to
assist the court, but Bailey sought an expert for his own
benefit”)(citation omitted); see also Borden v.
United States, 537 Fed. App'x. 570, 575 (5th Cir.
2013)(“706 allows the court to appoint an expert to
assist in its own understanding of the issues, but not for
the sole benefit of a party” and “28 U.S.C.
§ 1915, which governs indigent parties, does not provide
for the appointment of expert witnesses to aid an indigent
litigant”)(citing Hannah v. United States, 523
F.3d 597, 600-01 (5th Cir. 2008)). Plaintiff has alleged a
constitutional claim for failure to protect. A trier of fact
does not require a medical expert to make such a
determination as the related medical issues presented are not
so complex as to require an independent court-appointed
expert at this time. Therefore, Plaintiff's Motion for
Appointment of Expert Witnesses is DENIED. (D.E. 22).
pending is Plaintiff's Motion for Court Reporter. (D.E.
16). Plaintiff requests the Court record his examination of
the jury and all bench conferences. Again, this Motion is
DENIED as premature. No trial has been set. However,
Plaintiff should be aware that all court proceedings,
including trials, are recorded.
Plaintiff's Motion for Continuance/Extension of Time is
DENIED. (D.E. 18). Plaintiff states he has limited access to
legal material and requests an additional forty-five (45)
days to prepare motions. However, a scheduling order has not
been entered in this matter and therefore, no deadlines are
extent Plaintiff is attempting to raise a civil rights action
for denial of access to legal materials, Plaintiff is
instructed that to pursue that claim, he must file a separate
civil rights cause of action.
in sum, Plaintiff's Motions are DENIED (D.E. 13, D.E. 15,
D.E. 16, D.E. 17, D.E. 18, D.E. 21, and D.E. 22). However,
Plaintiffs Motion to Amend is GRANTED (D.E. 11) and Plaintiff
may amend his failure to protect claim on or before February
8, 2017. Other than an amended ...