Donald Lempar v. Brad Livingston

Case: 11-20182 Document: 00511766901 Page: 1 Date Filed: 02/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 24, 2012
No. 11-20182
Summary Calendar Lyle W. Cayce
Clerk
DONALD LEMPAR,
Plaintiff – Appellant
v.
BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice; ALLEN HIGHTOWER, Executive Director, Texas Department of
Criminal Justice; GLENDA ADAMS, M.D., North Region Medical Director,
University of Texas Medical Branch – C.M.H.C. Division; BOBBY VINCENT,
Medical Director, Estelle Unit; MYRA WALKER, Chief of the Office of
Professional Services; GUY SMITH, In His Individual Capacity; OWEN
MURRAY, Vice President, University of Texas Medical Branch; SONIE
MANGUM, Practice Manager, Huntsville Unit, University of Texas Medical
Branch; ROBERT DALECKI, Practice Manager, Huntsville Unit, University of
Texas Medical Branch; JAMIE WILLIAMS, Practice Manager, Estelle Unit,
University of Texas Medical Branch; ERNESTINE JUYLE, Primary Care
Provider, Estelle and Huntsville Units; DENNIS GORE, General Surgeon;
VALERIE BAUER, Colon/Rectal Surgeon; INTERN GARZA, Surgical Intern;
KATHERINE PEARSON, Nurse Practitioner; D. A. RUBY, Nurse Practitioner;
CHARLES NAGEL, Physicians Assistant; CHERYL EGAN, Physicians
Assistant; LESTER FINDLEY, Nurse, Estelle Unit, University of Texas Medical
Branch; LISA HORTON, Nurse, Estelle Unit, University of Texas Medical
Branch; MARTIN OAKLEY, Nurse, University of Texas Medical Branch;
CAROLYN HICKS, Nurse, Huntsville Unit, University of Texas Medical Branch;
TSUNG-LIN ROGER TSAI, Resident Doctor; SERGEANT DONNA CLEMENT,
Security Officer,
Defendants – Appellees
Case: 11-20182 Document: 00511766901 Page: 2 Date Filed: 02/24/2012
No. 11-20182
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-2983
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Donald Lempar, Texas prisoner # 1284244, appeals from the district
court’s denial of several pretrial orders in his 42 U.S.C. § 1983 civil rights suit
alleging deliberate indifference to his serious medical needs. We AFFIRM in
part and DISMISS in part for lack of jurisdiction.
Lempar argues that the district court erred in denying his motion to
appoint counsel. A pro se, civil-rights plaintiff has no entitlement to appointed
counsel barring “exceptional circumstances.” Branch v. Cole, 686 F.2d 264, 266
(5th Cir. 1982). Generally, “[t]he existence of such circumstances will turn on
the quality of two basic factors—the type and complexity of the case, and the
abilities of the individual bringing it.” Id. The denial of a motion to appoint
counsel is a directly appealable interlocutory order that this court reviews for
abuse of discretion. See Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985).
The district court determined that Lempar failed to show exceptional
circumstances and that Lempar’s previous filings indicated that he was
reasonably able to represent himself in this lawsuit. Section 1983 medical-needs
cases generally do not present issues of sufficient complexity to rise to the level
of “exceptional circumstances.” See, e.g., Lewis v. Lynn, 236 F.3d 766, 768 (5th
Cir. 2001). Lempar’s case is no different. Additionally, Lempar’s pleadings
*
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.
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Case: 11-20182 Document: 00511766901 Page: 3 Date Filed: 02/24/2012
No. 11-20182
indicate his grasp of the facts and relevant substantive and procedural legal
issues and demonstrate that he has the ability to adequately investigate and
present his case. Also, the district court indicated that it would sua sponte
reconsider the need for appointment of counsel should the case be set for jury
trial.1 Accordingly, we find no abuse of discretion. See Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir. 1982).
Lempar also appeals from the district court’s denial of his motion for a
preliminary injunction. We have jurisdiction to review the propriety of the
district court’s ruling. See, e.g., Tex. Midstream Gas Servs v. City of Grand
Prairie, 608 F.3d 200, 204 (5th Cir. 2010) (observing that this court has
jurisdiction over “‘[i]nterlocutory orders of the district courts . . . granting,
continuing, modifying, refusing or dissolving injunctions’” (quoting 28 U.S.C. §
1292(a)(1))). “A plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Id. at 206 (internal quotation
marks and citation omitted). We review for abuse of discretion. Id. Having
reviewed the record presented in light of applicable law, we find no such abuse
of discretion.
We lack jurisdiction to review the denial of Lempar’s motions for discovery
and for the appointment of an expert as Lempar has not shown that these
motions were intertwined with his request for injunctive relief or appointment
of counsel. See Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., 170
F.3d 536, 538 (5th Cir. 1999); Texaco, Inc. v. La. Land & Exploration Co., 995
F.2d 43, 43-44 (5th Cir. 1993).
1
On remand, the district court is also free to consider whether pro bono counsel might
be available to assist Lempar.
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Case: 11-20182 Document: 00511766901 Page: 4 Date Filed: 02/24/2012
No. 11-20182
AFFIRMED in part; DISMISSED in part; REMANDED to the district
court.
4