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Jackson v. Mackey

United States District Court, S.D. Texas, Corpus Christi Division

June 15, 2018

ROBRICHEE D JACKSON, Plaintiff,
v.
ANTHONY MACKEY JR, Defendant.

          ORDER DENYING PLAINTIFF'S MOTIONS AND SANCTIONS WARNING

          B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robrichee D. Jackson, proceeding pro se and in forma pauperis, has filed this civil rights action against Sergeant Anthony Mackey, Jr. (D.E. 1). Plaintiff is an inmate currently incarcerated at the McConnell Unit of the Texas Department of Criminal Justice, Criminal Institutions Division (“TDCJ”) in Beeville, Texas. Pending before the Court are Plaintiff's Second Motion to Compel Discovery (D.E. 30) and Motion for Appointment of Counsel (D.E. 31).

         I. BACKGROUND

         On October 5, 2017, Plaintiff filed his original complaint against Sergeant Mackey. (D.E. 1, p. 3). Plaintiff claims that Sergeant Mackey's actions violated his Eighth Amendment rights in that he failed to protect Plaintiff by placing him with a dangerous inmate who proceeded to attack Plaintiff. (D.E. 1, p. 4). Plaintiff seeks monetary, declaratory, and injunctive relief. (D.E. 1, pp. 13-14).

         On October 26, 2017, the undersigned ordered service of Plaintiff's complaint on Sergeant Mackey. (D.E. 6). Sergeant Mackey subsequently filed his answer to the complaint, asserting the defense of qualified immunity. (D.E. 12, ¶ 11). On December 11, 2017, the undersigned ordered the discovery period in this case to expire on April 20, 2018. (D.E. 13).

         On January 9, 2018, Plaintiff served on Sergeant Mackey requests for admissions and interrogatories. Sergeant Mackey responded by moving for a protective order in order to relieve him from having to answer Plaintiff's discovery requests. (D.E. 16). In an Order issued on March 1, 2018, the undersigned granted in part and denied in part Sergeant Mackey's motion for protective order. (D.E. 20). The undersigned directed that limited discovery be conducted relevant to the issue of Sergeant Mackey's qualified immunity defense. Specifically, the undersigned ordered that “[d]iscovery shall be limited to the personal knowledge and conduct of Sergeant Mackey as it relates to Plaintiff being assaulted by the offender on October 11, 2016. (D.E. 20, p. 6; D.E. 21, p. 2).

         On February 28, 2018, Plaintiff moved the Court for an order compelling Sergeant Mackey to answer his discovery requests and deeming Plaintiff's requests for admissions as true based on Sergeant Mackey's failure to answer them. (D.E. 18, 19). The undersigned denied these motions in an Order entered on March 16, 2018, concluding that: (1) pursuant to the partial protective order issued on March 1, 2018, Sergeant Mackey was protected from responding to discovery requests outside the parameters of the discovery allowed on the issue of qualified immunity; and (2) Plaintiff had failed to identify in his motions those portions of his discovery requests which involve Sergeant Mackey's personal knowledge and conduct as related to Plaintiff's assault on October 11, 2016. (D.E. 21, pp. 2-3). The undersigned denied Plaintiff's motions without prejudice to renew should Sergeant Mackey fail to respond to those portions of Plaintiff's discovery requests that fall within the parameters of the limited discovery allowed under the March 1, 2018 Order. (D.E. 21, p. 3).

         II. DISCUSSION

         A. SECOND MOTION TO COMPEL DISCOVERY

         In his Second Motion to Compel Discovery, Plaintiff states that Sergeant Mackey has failed to answer his interrogatories and requests for admissions as ordered by the undersigned on March 1, 2018. (D.E. 30). Plaintiff, however, filed this motion on June 11, 2018, well after the expiration of the discovery period on April 20, 2018. Plaintiff makes no attempt to explain why he waited over one and one/half months to file the instant motion. Plaintiff's Second Motion to Compel Discovery is denied as untimely filed.

         Even assuming Plaintiff's untimely filing of the instant discovery motion should somehow be excused, it is without merit. As noted in the partial protective order issued on March 1, 2018, Sergeant Mackey is protected from responding to discovery requests outside the parameters of the discovery allowed on the issue of qualified immunity. Plaintiff again has not identified in his Second Motion to Compel Discovery any portion of his discovery requests which involve Sergeant Mackey's personal knowledge and conduct as related to Plaintiff's assault on October 11, 2016. Plaintiff's motion, therefore, is denied based on Plaintiff's failure to identify any discovery request that falls within the parameters of the limited discovery allowed under the March 1, 2018 Order.

         B. MOTION FOR APPOINTMENT OF COUNSEL

         Plaintiff seeks the appointment of counsel to assist him in the prosecution of this case. (D.E. 31). 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, 518 U.S. 343, 351 (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 Dep't, 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 ...


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