Mcnamara v. Officer Ortega, Badge #6120 et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SEAN MCNAMARA,
Plaintiff,
vs.
OFFICER ORTEGA, BADGE #6120,
NATALIA POLICE DEPARTMENT;
CITY OF NATALIA TEXAS, NATALIA
POLICE DEPARTMENT,
Defendants.
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SA-25-CV-01577-OLG
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando L. Garcia:
Before the Court in the above-styled cause of action is Plaintiff’s pro se Application to
Proceed in District Court without Prepaying Fees or Costs and Complaint [#1] and pro se Motion
for Appointment of Counsel [#2], which were automatically referred to the undersigned upon
filing for disposition and a review of the pleadings pursuant to 28 U.S.C. § 1915(e). By his
motions, Plaintiff seeks leave to proceed in forma pauperis (“IFP”) based on his inability to
afford court fees and costs associated with this case and requests the appointment of an attorney
to represent him in this case. The undersigned has authority to enter this report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Having considered the motions and
documentation provided by Plaintiff, the undersigned will grant Plaintiff’s motion to proceed IFP
but deny his motion for appointment of counsel. The undersigned will also recommend that his
Complaint be dismissed pursuant to 28 U.S.C. §1915(e). Plaintiff’s other motions for a
preliminary injunction [#3] and for declaratory judgment [#4] have not been referred to the
undersigned and remain pending before the District Court.
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I. Analysis
A. Plaintiff’s motion to proceed IFP should be granted.
All parties instituting any civil action, suit, or proceeding in a district court of the United
States, except an application for a writ of habeas corpus, must pay a filing fee of $350, as well as
an administrative fee.1 See 28 U.S.C. § 1914(a). Plaintiff’s motion to proceed IFP includes his
income and asset information, which indicates that Plaintiff does not have sufficient monthly
resources available to pay the filing fee. The undersigned will therefore recommend that
Plaintiff’s motion to proceed IFP be granted.
B. Appointment of Counsel
Courts may appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) in IFP proceedings.
Under § 1915(e)(1), the Court has discretion to appoint an attorney to represent a litigant in
federal court, but there is no right to the automatic appointment of counsel in a civil case.
Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.
1987). Appointment of counsel in a civil case is considered a privilege, not a constitutional
right. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982) (citation omitted). The Court is only
required to appoint counsel, such that the denial of counsel constitutes an abuse of discretion,
where the case presents exceptional circumstances. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982).
In evaluating whether a case involves “exceptional circumstances,” a court should
consider the following factors: (1) the type and complexity of the case; (2) whether the plaintiff
is capable of adequately presenting her case; (3) whether the plaintiff is in a position to
1 The administrative fee, which is currently $55, is waived for plaintiffs who are granted IFP
status. See District Court Miscellaneous Fee Schedule, available at
http://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.
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investigate adequately the case; (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; and (5)
whether the appointment of counsel would be a service to the plaintiff and, perhaps, the court
and defendant as well, by sharpening the issues in the case, shaping the examination of
witnesses, and thus shortening the trial and assisting in a just determination. Id. at 213 (citations
omitted).
Plaintiff has not demonstrated that exceptional circumstances are present in his case or
that, based on the record, appointment of counsel is appropriate under the applicable legal
standards under 28 U.S.C. § 1915(e) at this stage of the proceedings. Although Plaintiff lacks
the financial resources to retain private counsel, Plaintiff’s pleadings indicate that he is able to
articulate the basis of and present the facts pertinent to his claims. Accordingly, the Court will
deny Plaintiff’s request for counsel at this stage of the proceedings. This denial is without
prejudice to Plaintiff renewing his request at a later stage of this lawsuit.
C. Plaintiff’s Complaint should be dismissed.
Pursuant to 28 U.S.C. § 1915(e), this Court may screen any civil complaint filed by a
party proceeding IFP to determine whether the claims presented are (1) frivolous or malicious;
(2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).
Plaintiff’s proposed Complaint names three Defendants: Officer Ortega of the Natalia
Police Department; the City of Natalia, Texas; and the Natalia Police Department. Construing
the facts alleged in Plaintiff’s proposed Complaint liberally, Plaintiff alleges that his rights under
the Fourteenth and Fourth Amendment were violated in state criminal proceedings and through a
subsequent wrongful arrest. Plaintiff alleges that his state court convictions were void at the time
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they were imposed in 1994. He further alleges that he was wrongfully arrested in 2025 as a
result of these convictions. Plaintiff seeks declaratory and injunctive relief as well as
compensatory and punitive damages.
The Court construes Plaintiff’s proposed suit as a civil rights action arising under 42
U.S.C. § 1983 seeking damages for alleged violations of due process in criminal proceedings that
resulted in a conviction and sentence in state court. Plaintiff’s lawsuit is barred by Heck v.
Humphrey, 512 U.S. 477 (1994). To recover monetary compensation for “harm caused by
actions whose unlawfulness would render a conviction or sentence invalid,” a prisoner must
show that the conviction or sentence has been “reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486–87.
Plaintiff’s due process and wrongful arrest claims fall within the parameters of Heck. A
favorable judgment on these claims would call into question the validity of the criminal
proceedings. Plaintiff has not alleged that his state conviction has been reversed on direct
appeal, expunged by executive order, declared invalid by a state or federal tribunal, or called into
question by a federal court’s issuance of a writ of habeas corpus. See id. Accordingly, the
District Court should dismiss his proposed Complaint as legally frivolous pursuant to 28 U.S.C.
§ 1915(e).
II. Order and Recommendation
IT IS THEREFORE ORDERED that Plaintiff’s pro se Application to Proceed in
District Court without Prepaying Fees or Costs [#1] is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s pro se Motion for Appointment of Counsel
[#2] is DENIED.
Having considered Plaintiff’s Complaint under the standards set forth in 28 U.S.C.
§1915(e), the undersigned also recommends that Plaintiff’s claims be DISMISSED pursuant to
Section 1915(e).
III. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified
mail, return receipt requested. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file
the objections with the clerk of the court, and serve the objections on all other parties. A party
filing objections must specifically identify those findings, conclusions or recommendations to
which objections are being made and the basis for such objections; the district court need not
consider frivolous, conclusive or general objections. A party’s failure to file written objections
to the proposed findings, conclusions and recommendations contained in this report shall bar the
party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52
(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to
file timely written objections to the proposed findings, conclusions and recommendations
contained in this report and recommendation shall bar the aggrieved party, except upon grounds
of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
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conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996) (en banc).
SIGNED this 8th day of December, 2025.
ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE
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