United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE.
inmate Mark Allen Crow (TDCJ #01984309) has filed a Complaint
Under the Civil Rights Act, 42 U.S.C. § 1983
("Original Complaint")(Docket Entry No. 1),
alleging that he received inadequate medical care for
Hepatitis C while in prison. He has also filed an Amended
Complaint (Docket Entry No. 10) . The defendants (David
Mbugua, Kwabena Owusu, Sandra Smock, Victoria Williams, and
Patrick Muldowney) have filed a Motion to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6) ("Defendants'
Motion to Dismiss")(Docket Entry No. 19). Crow has filed
an "Opposition Brief" in response (Docket Entry No.
20) and a "Motion for Leave to File [a Second] Amended
Complaint" (Docket Entry No. 23). Crow has also filed a
Motion for the Appointment of Counsel (Docket Entry No. 24).
The pending motions are addressed briefly below.
presently incarcerated by the Texas Department of Criminal
Justice - Correctional Institutions Division
("TDCJ") at the Terrell Unit in Rosharon,
Texas. Crow alleges that he has been refused
treatment in the form of prescription medication known as
"Harvoni" with deliberate indifference to a serious
medical condition (i.e., Hepatitis C) by the
following health care providers employed by TDCJ at the
Terrell Unit: Nurse Practitioner David Mbugua, Dr. Kwabena
Owusu, Registered Nurse Sandra Smock, Nurse Practitioner
Victoria Williams, Physician's Assistant Patrick
Muldowney, and Nurse Practitioner Adapbi
Crow contends that the defendants have denied him adequate
care in violation of the Eighth Amendment, the court
requested an answer from the above-referenced
defendants. Mbugua, Owusu, Smock, Williams and
Muldowney move to dismiss the complaint against them,
asserting state official immunity under the Eleventh
Amendment and arguing further that Crow's dissatisfaction
with the level of care that he has received does not state a
claim under the Eighth Amendment. The State Attorney
General's Office has not filed a motion or answer on
behalf of Defendant Nwafor. Because she is not employed by a
state agency the Attorney General's Office is not
authorized to accept service on her behalf.
Crow's Motion for Leave to Amend and the Motion to
requests leave to file a Second Amended Complaint in an
effort to cure some of the deficiencies outlined in the
Defendants' Motion to Dismiss. Rule 15(a) of the Federal
Rules of Civil Procedure dictates that leave to amend should
be freely granted "when justice so requires."
Fed.R.Civ.P. 15(a)(2). The Fifth Circuit has recognized that,
while leave to amend is not automatic, "Rule 15 evinces
a bias in favor of granting leave to amend."
Goldstein v. MCI WordCom, 340 F.3d 238, 254 (5th
Cir. 2003) (quoting S. Constructors Group, Ltd. v.
Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993)).
"In the absence of any apparent or declared reason -
such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failures to cure deficiencies by
amendments previously allowed, undue prejudice to the other
party by virtue of allowance of the amendment, futility of
amendment, etc. - the leave sought should, as the rules
require, be 'freely given.'" Foman v.
Davis, 83 S.Ct. 227, 230 (1962).
Motion for Leave to File a Second Amended Complaint, which
was submitted in response to the Defendants' Motion to
Dismiss, does not appear to have been filed in bad faith.
Although Crow has already filed an Amended Complaint,
allowing another opportunity for leave to amend will not
unduly prolong the litigation or prejudice the defendants,
who have not filed a response to Crow's Motion. Under
this court's local rules, the failure to respond to a
motion is taken as a representation of no opposition.
See S.D. Tex. L.R. 7.4 (eff. May 1, 2000).
Therefore, the court will grant Crow leave to amend.
extent that the Defendants' Motion to Dismiss pertains to
Crow's previously filed Original and first Amended
Complaint, the Motion to Dismiss will be denied at this time
without prejudice to reconsideration after the court has
screened the proposed Second Amended Complaint as required by
the Prison Litigation Reform Act ("PLRA"), 28
U.S.C. § 1915A.
The Motion for Appointment of Counsel
his lack of legal training and his status as an indigent
inmate, Crow requests the appointment of counsel to represent
him in this case. There is no automatic constitutional right
to appointment of counsel in civil rights cases. See
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007);
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982). Where a litigant proceeds in forma
pauperis, the court may "request an attorney to
represent any person unable to afford counsel." 28
U.S.C. § 1915(e)(1); see also Mallard v. United
States District Court for the Southern District of Iowa,
109 S.Ct. 1814, 1823 (1989) (holding that the statute
governing in forma pauperis cases does not authorize
"coercive appointments of counsel" for indigent
litigants in civil cases). Nevertheless, the court is not
required to locate counsel for an indigent litigant unless a
case presents exceptional circumstances, such as where an
indigent plaintiff has colorable claims that will not receive
a meaningful hearing without counsel. See Naranio v.
Thompson, 809 F.3d 793, 803 (5th Cir. 2015) .
issues in this case, which involve the provision of medical
care for a chronic condition, are not factually or legally
complex. Crow's pleadings are neatly typed and his
motions are supported by appropriate authority,
showing that he understands the issues and that he has done a
capable of representing himself thus far. To the extent that
the claims concern medical treatment, it does not appear that
a substantial amount of investigation will be required. Crow
does not otherwise show that his claims will not receive a
meaningful hearing without trained counsel at this point.
Although Crow notes that he has limited knowledge of the law,
this is true of every pro se prisoner and does not,
standing alone, constitute an exceptional circumstance.
considering all of the pleadings filed to date, the court
will deny Crow's request for counsel at this time. The
court will reconsider whether counsel is necessary on its own
motion after it has screened the ...