Opinion
No. 3-02-CV-2215-N.
August 12, 2004
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order of reference filed on August 11, 2004 came on to be considered motions which are currently pending in this action which are addressed seriatim, and the magistrate judge finds and recommends as follows:
1. Plaintiff's Motion to Amend Pleadings with Additional Parties filed on March 23, 2004. The current live complaint on which Plaintiff is proceeding is his amended complaint filed on April 8, 2003. Each of the defendants upon whom process was served has filed an answer. In his motion Plaintiff represents that he submitted an original and copy of his proposed amended complaint with his motion as required by Local Rule 15.1. However, the Clerk's original file in this action does not contain such proposed amended pleadings. Therefore Plaintiff's motion to amend should be denied.
2. Plaintiff's Motions for Appointment of Counsel filed on July 29, 2004 and August 11, 2004. Those motions are premised primarily on the fact that his legal materials, currently in the possession of the Texas Department of Criminal Justice — Institutional Division, are unavailable to him while confined in the Dallas County Jail and that he has limited access to the Dallas County inmate law library.
Plaintiff was returned to the Dallas County Jail on or about July 2, 2004 and according to him is awaiting trial on a criminal case in which he faces a possible term of life imprisonment if convicted.
A prisoner pursuing a claim of civil rights violations is not entitled to counsel as a matter of right. In determining whether in the exercise of sound discretion counsel should be appointed, four factors have been identified by the Fifth Circuit. See Ulmer v. Chancellor, 691 F.2nd 209; 213 (5th Cir. 1982).
The claims asserted in the Plaintiff's amended complaint are not legally or factually complex. The use of a K-9 dog in apprehending him is uncontested. The issue is whether Defendants' conduct at the time of his arrest was an unreasonable and excessive use of force. Plaintiff's conduct in this case thus far, including his citations to legal authority in his pleadings, shows that he is capable of adequately representing himself. Despite his incarceration, he has not utilized any discovery avenues which are available to parties under the Federal Rules of Civil Procedure. Finally, Defendants note that Plaintiff represented himself in a criminal case filed in Tarrant County, Texas. Although the present apparent unavailability of his legal materials may constitute grounds for a delay of the disposition of this case or a continuance of the trial date, it does not constitute a basis for appointing an attorney in this case. Therefore his motions for appointment of counsel should be denied.
3. Plaintiff's motions for orders to forward legal materials filed on July 29, 2004 and August 11, 2004.
In these motions Plaintiff seeks orders requiring the Texas Department of Criminal Justice to forward to Plaintiff at the Dallas County Jail legal materials belonging to him which he claims to be in the possession of the Texas prison system. His pleadings are silent as to any efforts (written communications or otherwise) to officials at the prison unit where his legal materials are located. However, dispositive of these motions is the fact that the court lacks jurisdiction over a non-party to grant the relief requested. Therefore these motions should be denied.
4. Defendants' motion for leave to depose Plaintiff filed on August 6, 2004. Because Plaintiff is an incarcerated person, his deposition may not be taken without leave of court. See Rule 30(a)(2), Federal Rules of Civil Procedure. Given Plaintiff's status in the case, it is clear that such motion should be granted. However, it is recommended that Defendants' counsel be required to confer with an appropriate official at the Dallas County Jail, or such other institution in which Plaintiff may be confined, to agree on an appropriate location, time and date for the taking of Plaintiff's deposition.
For the foregoing reasons, it is recommended that the District Court order that Plaintiff's motion to amend pleadings, Plaintiff's motions for appointment of counsel and Plaintiff's motions for orders to forward legal materials be denied and that Defendants' motion for leave to depose Plaintiff be granted.
On August 5, 2004 Plaintiff filed a motion in limine. The magistrate judge is of the opinion that the matters raised therein are best reserved to the District Judge to be ruled on prior to trial in this action. However, Plaintiff should understand that if he testifies as a witness, his testimony is subject to being impeached by any felony convictions. See F.R.Evid. 609.
A copy of this recommendation will be served on Plaintiff and on counsel for Defendants.