Summers v. United States Federal Bureau of Prisons (BOP) , 691 F. App'x 222 ( 2017 )

Case: 16-10682 Document: 00514053670 Page: 1 Date Filed: 06/29/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10682 FILED
Summary Calendar June 29, 2017
Lyle W. Cayce
Clerk
TODD WAYNE SUMMERS,
Plaintiff-Appellant
v.
UNITED STATES FEDERAL BUREAU OF PRISONS (BOP); JORGE
PARTIDZ, M.D.; ROBERTO ACOSTA, HSA; BRIAN ALEXANDER, PA; A.
SINAVSKY, M.D.; JANE DOE, MDC Los Angeles; UNITED STATES OF
AMERICA,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:13-CV-138
Before KING, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Todd Wayne Summers, federal prisoner # 11515-091, appeals from the
order of the magistrate judge (MJ) denying his motion for the appointment of
counsel to represent him in his action under the Federal Tort Claims Act.
Summers contends that the appointment of counsel is warranted due to the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-10682 Document: 00514053670 Page: 2 Date Filed: 06/29/2017
No. 16-10682
need for expert testimony. He notes that, in order to prevail on his medical
malpractice claim, he must provide proof that there was a breach of the
standard of care and that the breach was the proximate cause of his injury.
Summers asserts that the testimony of an expert witness will be required to
establish his claim, and he argues that counsel should be appointed because,
due to his indigent status, he has no means to procure such an expert.
A trial court is not required to appoint counsel for an indigent plaintiff
in a civil rights action unless there are exceptional circumstances. Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Whether exceptional
circumstances exist is “dependent on the type and complexity of the case and
the abilities of the individual pursuing that case.” Cupit v. Jones, 835 F.2d 82,
86 (5th Cir. 1987). In determining whether exceptional circumstances exist,
courts consider (1) the type and complexity of the case; (2) the indigent’s ability
to adequately present the case; (3) the indigent’s ability to investigate the case
adequately; and (4) “whether the evidence will consist in large part of
conflicting testimony so as to require skill in the presentation of evidence and
in cross examination.” Ulmer, 691 F.2d at 213.
Although medical malpractice claims may require expert testimony, see
Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008), our review shows
that Summers has failed to demonstrate that the MJ clearly abused his
discretion in denying his motion for the appointment of counsel. See Cupit,
835 F.2d at 86. As the MJ noted, a district court “has no authority to appoint
an expert witness under [28 U.S.C. § 1915]” to assist an indigent plaintiff.
Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995). Summers, however, on a
pro se basis, may request that the district court appoint an expert under
Federal Rule of Evidence 706, which “contemplates the appointment of an
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No. 16-10682
expert to aid the court.” Hannah, 523 F.3d at 600; see Pedraza, 71 F.3d at 197
n.5.
Further, to the extent that Summers argues that he should be
represented by counsel because he does not have the ability to understand trial
strategy, nor the ability to effectively cross-examine the defendant’s witnesses,
he again fails to demonstrate that the MJ’s denial of the motion for
appointment of counsel was a clear abuse of discretion. See Cupit, 835 F.2d at
86. As the MJ determined, Summers has not shown that the evidence will
largely consist of conflicting testimony requiring skill in the presentation of
evidence and in cross examination. See Ulmer, 691 F.2d at 213. Moreover, the
record as a whole amply supports the MJ’s determination that Summers has
demonstrated an ability to adequately present his case. See id.AFFIRMED.
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