Montenegro v. Murphy

1

TRISTAN DI MONTENEGRO, Plaintiff, v. KATHLEEN MURPHY, et al., Defendants.

Civil Action No. 4:22-cv-476-ALM-KPJ

United States District Court, E.D. Texas, Sherman Division

January 26, 2023

OPINION AND ORDER

KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.

Pending before the Court are Plaintiff Tristan di Montenegro's (“Plaintiff”) Motion for Reconsideration (the “Motion for Reconsideration”) (Dkt. 30), Motion to Appoint Counsel (the “Third Motion to Appoint Counsel”) (Dkt. 34), and Motion to Appear Before the Court (the “Motion to Appear,” and, together with the Motion for Reconsideration and the Third Motion to Appoint Counsel, “Plaintiff's Motions”) (Dkt 35). For the reasons that follow, Plaintiff's Motions (Dkts. 30, 34, 35) are DENIED. Plaintiff's deadline to respond to the Motion to Dismiss filed by Defendants Kathleen Murphy and Phillip Gonzalo Ayala (the “DPS Defendants Motion to Dismiss”) (Dkt 17) and the Motion to Dismiss filed by Defendant Matthew DeSarno (the “DeSarno Motion to Dismiss” and together with the DPS Defendants Motion to Dismiss, the “Motions to Dismiss”) (Dkt. 27), which are currently pending before the Court, is extended to February 8, 2023.

I. BACKGROUND

On June 6, 2022, Plaintiff, proceeding pro se and in forma pauperis, filed a Motion to Appoint Counsel (the “First Motion to Appoint Counsel”) (Dkt. 3). See Dkt. 3. On June 13, 2022, the First Motion to Appoint Counsel was denied without prejudice. See Dkt. 13. On September 30, 2022, Plaintiff filed a second Motion to Appoint Counsel (the “Second Motion to Appoint Counsel”) (Dkt. 21). See Dkt. 21. On October 10, 2022, the Second Motion to Appoint Counsel was denied without prejudice. See Dkt. 26. On November 3, 2022, Plaintiff filed the Motion for Reconsideration, wherein Plaintiff argued the Court should reconsider its denial of the Second Motion to Appoint Counsel. See Dkt. 30. On December 19, 2022, Plaintiff filed the Third Motion to Appoint Counsel. See Dkt. 34. On January 4, 2023, Plaintiff filed the Motion to Appear. See Dkt. 35.

II. ANALYSIS

A. Motion to Appear

In the Motion to Appear, Plaintiff writes: “I am humbly requesting to appear before the Honorable Court in person before the Honorable Judge responds to my prior motions[].” Dkt. 35. It is not clear for what specific purpose Plaintiff seeks to appear before the Court. To the extent Plaintiff seeks to appear to make additional arguments pertaining to the Motion for Reconsideration and the Third Motion to Appoint Counsel, the Court finds that it has sufficient information from Plaintiff's arguments within those Motions on which to decide them. On that basis, the Motion to Appear is denied.

B. Appointment of Counsel^[1]

“There is no right to appointment of counsel in civil cases, but a district court may appoint counsel if doing so ‘would aid in the efficient and equitable disposition of the case.'” Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018) (quoting Jackson v. Dall. Police Dep't, 811 F.2d 260, 262 (5th Cir. 1986) (per curiam)). In deciding whether to appoint counsel, courts consider:

(1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is in a position to adequately investigate the case; 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. Id. (quoting Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (citations omitted)). “Generally, the appointment of counsel should be reserved for cases that present ‘exceptional circumstances.'” Id. (quoting Ulmer, 691 F.2d at 213).

In its Order denying the Second Motion to Appoint Counsel, the Court found that, at the time of the Order, Plaintiff had not presented “exceptional circumstances” to justify appointment of counsel. See Dkt. 26. Plaintiff argues that, at this time, his case presents such “exceptional circumstances” as to justify appointment of counsel. See generally Dkts. 30, 34.

Much of Plaintiff's arguments boil down to the perceived breadth of the investigation necessary to litigate this case. The Court emphasizes that this case is in its early stages. Therefore, Plaintiff's arguments in this regard are inherently speculative. The Court finds it most helpful to analyze the appointment of counsel question regarding Plaintiff's immediate responsibility, which is to respond to the Motions to Dismiss.

1. Type and Complexity of the Case

Plaintiff asserts, among other things, that “[t]his case involves tort litigation, massive defamation and slander, human rights violations, civil rights violations, constitutional rights violations, identity theft, stalking, cyber-harassment, retaliation - in addition to addressing the still-ongoing criminal activities perpetrated by the Defendants and the individuals whom they are responsible for.” Dkt. 30 at 2.

Among other claims, Plaintiff asserts claims under 42 U.S.C. § 1983. See Dkt. 1 at 44. “While section 1983 cases are by their nature more complex than many other cases, Branch dictates that counsel must be appointed only in exceptional civil rights cases.” Jackson, 811 F.2d at 262 (citing Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982)). The Court finds Plaintiff's Section 1983 claims are not legally “exceptional” (i.e., they do not present particularly novel or complex issues of law). For example, one of Plaintiff's theories of liability under Section 1983 is retaliation for exercising his First Amendment rights. This is an issue that has “been briefed and analyzed in numerous cases.” Jackson, 811 F.2d at 262 (citations omitted); see, e.g., Hartman v. Moore, 547 U.S. 250, 256 (2006) (reciting the general standard for First Amendment retaliation claims). Regarding Plaintiff's other claims based on federal law (conspiracy, failure to supervise, Equal Protection Clause violations) and his claims based on state law (tortious interference with business relations, gross business disparagement, defamation, conspiracy), the Court has not identified any such legally exceptional issue at this time. Therefore, the nature of Plaintiff's claims does not support appointment of counsel at this juncture.

Topics raised in the Motions to Dismiss include: 28 U.S.C. § 1915; standing; qualified immunity; failure to state a claim upon which relief may be granted; subject matter jurisdiction; insufficient service of process; Bivens claims; and sovereign immunity. See generally Dkts 17, 27. These issues are likewise ones “that have been briefed and analyzed in numerous cases.” Jackson, 811 F.2d at 262 (citations omitted); see, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (setting forth the general standard for qualified immunity).

Accordingly, this factor favors denying the Motion for Reconsideration and the Third Motion to Appoint Counsel.

2. Whether Plaintiff is Capable of Adequately Presenting His Case

Plaintiff argues his case is “extremely complicated as a result of the number and types of criminal acts” to which he has allegedly been subjected, in addition to “the occupational positions the Defendants hold” and that Plaintiff “has no knowledge of local rules, nor civil procedure and [is] up against skilled and well-practiced attorneys from the Department of Justice and The Texas Department of Public Safety, with unlimited federal and state funds at their disposal.” Dkt. 30 at 2.

The Court first notes that in his complaint, Plaintiff has identified the actors he believes have injured him and in what ways they have allegedly injured him.^[2]Therefore, at this stage, it does not appear that the alleged numerosity of Defendants' wrongful acts has rendered Plaintiff unable to adequately present his case. Plaintiff appears to next assert that he inherently cannot adequately present his case because of the fact that he is opposed by Government defendants (given the Government's access to certain resources to which pro se parties do not have access). In order for the Court to accept Plaintiff's argument, it would have to be the case that, by virtue of suing Government defendants, a plaintiff would automatically be entitled to the appointment of counsel. As stated earlier, there is no right to counsel in civil cases generally, or in civil rights cases specifically. See Jackson, 811 F.2d at 262. Therefore, the Court rejects this argument.

Plaintiff next argues that he cannot adequately present his case because of his lack of knowledge of local rules and civil procedure and the fact that he is litigating against attorneys from the Department of Justice and The Texas Department of Public Safety. “A litigant's pro se status . . . [does not] excuse[] him for lack of knowledge of the Rules of Civil Procedure.” Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th Cir. 2013) (citation omitted); see also Propes v. Quarterman, 573 F.3d 225, 232 (5th Cir. 2009) (“[W]e cannot ignore the principle that pro se litigants must conform to the same rules that are no doubt more easily understood by lawyers.”). Moreover, Plaintiff notes he has an advanced degree (albeit not a legal degree). Accordingly, Plaintiff is capable of reading and understanding the relevant rules of civil procedure and local rules. Hence, Plaintiff's arguments in this regard are unpersuasive.

The Court acknowledges that while the arguments raised by Defendants in their Motions to Dismiss are not exceptional they are numerous. To the extent the number of arguments raised by Defendants is of concern, it is mitigated by the fact that the Court has twice granted Plaintiff's motions for extension of time to file a response, most recently giving him an extension until December 19, 2022, see Dkt. 33, which...