Opinion
CIV 01-1031 WJ/KBM.
February 6, 2002.
ORDER DENYING APPOINTMENT OF COUNSEL AND GRANTING EXTENSION TO FILE RECORD PROPER
This matter is before the Court on an number of motions. First are Petitioner motions to reconsider the prior order denying appointment of counsel. Docs. 12, 19 25. Magistrate Judge Lorenzo F. Garcia denied counsel under Williams v. Meese, 926 F.2d 994, 996-97 (10th Cir. 1991). See Doc. 10.
To that reasoning I add that there is no constitutional right to counsel in habeas proceedings and the decision whether the appoint counsel is left to the courts discretion.
Ordinarily, there is no reason to appoint counsel unless the case has reached the stage of the proceedings where an evidentiary hearing is required. See e.g., United States v. Leopard, 170 F.3d 1013 (10th Cir. 1999) (§ 2255 case); Swazo v. Wyoming Dept. of Corrections, 23 F.3d 332 (10th Cir. 1994) (§ 2254 case); see also Karls v. Hudson, 182 F.3d 932 (10th Cir. 1999) (unpublished) (§ 2241 case), cert. denied, 120 S.Ct. 449 (1999). This case has not reached that stage and, accordingly, appointment of counsel is not warranted at this time.
Petitioner argues he should have an attorney because his access to the court is impeded.
Specifically, he asserts the maximum security unit at the New Mexico Penitentiary has no library and only provides inmates forms for initial pleadings and forms for requests for counsel.
Petitioner attached a copy of his grievance where he asserts that the legal assistant here says we are now under new policy and we no longer get to go to the law library and we can only get forms and legal copy[ies] brought to our cell. With no case law or legal books or letting me use the law library how an I expected to finish my fed[e]ral writ?? The law librarian (paralegal) says we can meet with him and he can show us how to fill out forms but he cannot give us legal advise [sic] or case law. Doc. 25.
Other prisoners have raised access to the court claims under virtually identical circumstances and the judges of this district have dismissed the actions for failure to state a claim.
The complaint alleges that under a New Legal Access Program Defendants have closed the law library at the Lea County, New Mexico, Correctional Facility (LCCF) and are providing only mediocre form packets for use in inmate litigation.
Furthermore, inmate legal assistant jobs have been eliminated.
Plaintiff claims these actions have violated his First Amendment right of access to the courts. He seeks injunctive relief requiring that Defendants cease and desist implementation of the program. Plaintiffs allegations do not support a claim for denial of access to the courts. Even assuming the truth of these allegations for purposes of this opinion, Plaintiff does not allege relevant actual injury, Lewis v. Casey, 518 U.S. 343, 351 (1996), resulting from officials actively interfering with his attempts to prepare and file legal documents. Id.at 350. The Supreme Courts main concern here is protecting the ability of an inmate to prepare a petition or complaint. Bounds v. Smith, 430 U.S. 817, 828 n. 17 (1977) (quoting Wolff v. McDonnell, 418 U.S. 539, 576 (1974)). Plaintiffs' 1983 action may not be based on claims of an abstract, free-standing right to a law library or legal assistance, . . . [or] that his prisons law library or legal assistance program is sub-par in some theoretical sense. Lewis, 518 U.S. at 351. Here, Plaintiff only alleges that the law library is closed and less assistance is available. Because Plaintiff does not allege active interference with his preparation and filing of papers, no relief can be granted on his claim. The complaint will be dismissed. Martinez v. Williams, CIV 00-1579 LH/LFG (Doc. 8, filed 1/10/01).
Thus, I find the lack of a law library is not grounds to appoint counsel.
Petitioner has also moved for a default judgment on the ground that Respondents failed to file the record proper on time (Doc. 24), Respondents have moved for a second extension to file it (Doc. 26). Respondents explain that the transcripts were ordered but are not yet complete and ask for an extension until February 6, 2002 to file the state court record. Good cause having been shown, I will grant Respondents extension and deny Petitioners motion for default.
Wherefore,
IT IS HEREBY ORDERED that Petitioners motions for reconsideration of appointment of counsel and default judgment (Docs. 12, 19, 24 25) are DENIED.
IT IS FURTHER ORDERED that Respondents motion for an extension (Doc. 26) is GRANTED and the record proper is now due by February 6, 2002 .
____________________________________ UNITED STATES MAGISTRATE JUDGE