Opinion
DOCKET NO. 2:18-CV-00692
09-17-2019
NEAL E. HAVLIK REG. #24985-009 v. UNITED STATES OF AMERICA
MAGISTRATE JUDGE KAY
RULING AND ORDER
Before the Court is "Plaintiff's Objections and Appeal of Judge's Electronic Order Denying [88] Motion to Appoint Counsel Under Rule 15.e" (Doc. 102). Plaintiff, Neal E. Havlik, appeals the Magistrate Judge's order (Doc. 97) denying him appointment of counsel.
Havlik has filed this lawsuit pursuant to the Federal Tort Claims Act. He complains that he received inadequate and/or improper medical and dental care at the Federal Corrections Institution at Oakdale, Louisiana ("FCIO"). On June 24, 2019, Havlik filed a motion for appointment of counsel. (Doc. 88).
The Magistrate Judge denied the motion for appointment of counsel after applying the exceptional factors, Huff v. Neal,555 Fed. App'x 289, 299 (5th Cir. 2014) (citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), to determine if counsel should be appointed in FTCA cases. The Magistrate Judge noted that the trial court has discretion to appoint counsel for an indigent if doing so would advance the proper administration of justice (citing Branch v. Cole, 686 F.2d 264, 2667-67 (5th Cir. 1982).
In his appeal, Havlik complains that due to his deteriorating health, he can no longer write and must "issue promissory notes as payment" to other inmates for their assistance. He argues that there is an inherent conflict of interest because the Defendants, Judges and the Court are employed by the same entity and receive their pay from the same employer.
The district court has authority to review a magistrate judge's decision on a non-dispositive pre-trial motion and to reverse that decision if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). The Court finds no basis in law or fact to reverse the Magistrate Judge's order denying the motion to appoint counsel. Moreover, her decision to deny the appointment of counsel is neither clearly erroneous, nor contrary to law. Accordingly,
IT IS ORDERED, ADJUDGED AND DECREED that the appeal of the Magistrate Judge's Order (Doc. 102) is hereby DENIED.
THUS DONE AND SIGNED in Lake Charles, Louisiana on this 17 day of September, 2019.
/s/ _________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE