UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MICHAEL MOATES,

Plaintiff, 

v. No. 4:22-cv-0262-P

TEXAS DEPARTMENT OF LICENSING AND 

REGULATION ET AL.,

Defendants.

ORDER

Before the Court is Plaintiff Michael Moates’s Motion to Appoint 

Counsel (ECF No. 3); Motion for Preliminary Injunction (ECF No. 8); 

Motion for Permission to Appeal in Forma Pauperis (ECF No. 12); and 

Motion to Stay and Reconsider (ECF No. 13). As explained below, the 

Court denies each motion. 

A. Motion to Appoint Counsel 

There is no right to the appointment of counsel in a civil rights action 

filed by a litigant proceeding pro se. E.g., Hulsey v. State of Tex., 929

F.2d 168, 172 (5th Cir. 1991); Freeze v. Griffith, 849 F.2d 172, 175 (5th

Cir. 1988); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). In 

exceptional circumstances, however, counsel may be appointed. Id. To 

determine whether such exceptional circumstances exist, courts 

consider the following factors: 

(1) the type and complexity of the case;

(2) whether the plaintiff is capable of adequately representing 

himself;

(3) the plaintiff’s ability to adequately investigate and present 

his case;

(4) the presence of evidence which consists largely of 

conflicting testimony so as to require skill in the 

presentation of evidence and in cross-examination; and

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(5) the likelihood that appointment will benefit the plaintiff, 

the court, and the defendants by shortening the trial and 

assisting in a just determination.

Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir.

1991); Ulmer, 691 F.2d at 213.

A review of the Complaint (ECF No. 1) reveals that Plaintiff has 

adequately presented the operative facts underlying his claims for relief. 

Further, the motions filed by Plaintiff indicate that he possesses a 

sufficient understanding of court procedures. Thus, Plaintiff seems 

capable of adequately representing himself in this litigation. Moreover, 

there are no complex issues of fact or law in this dispute which would 

require the skill of an attorney to litigate. And, at this time, it does not 

appear likely that appointment of counsel would shorten the litigation 

process or assist in a just resolution of the Complaint.

Although Plaintiff has a difficult burden to meet, all pro se plaintiffs 

who bring civil rights actions face a similar challenge. Plaintiff has 

failed to establish exceptional circumstances to warrant appointment 

of counsel at this time. The Court therefore DENIES the Motion to 

Appoint Counsel. ECF No. 3. 

B. Motion for Preliminary Injunction

To be entitled to a preliminary injunction, a movant must establish: 

(1) a likelihood of success on the merits; (2) a substantial threat of 

irreparable injury; (3) that the threatened injury if the injunction is 

denied outweighs any harm that will result if the injunction is granted; 

and (4) that the grant of an injunction will not disserve the public 

interest. Ladd v. Livingston, 777 F.3d 286, 288 (5th Cir. 2015) (quoting 

Trottie v. Livingston, 766 F.3d 450, 451 (5th Cir. 2014)). 

If a party fails to satisfy any one of the four essential elements, a 

district court may not grant a preliminary injunction. Miss. Power & 

Light Co. v. United Gas Pipeline Co., 760 F.2d 618, 621 (5th Cir. 1985). 

A preliminary injunction is an “extraordinary and drastic remedy” that 

is to be granted “only when the movant, by a clear showing, carries the 

burden of persuasion” as to each element. Digital Generation, Inc. v. 

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Boring, 869 F. Supp. 2d 761, 772 (N.D. Tex. 2012) (quoting Holland Am. 

Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). 

Here, Plaintiff failed to address three of the essential elements 

required for a preliminary injunction. See generally ECF No. 8. Further, 

based on the prayer for relief, it appears that Plaintiff seeks a 

mandatory injunction, which requires him to meet an even high burden. 

Plaintiff has therefore failed to establish the essential elements required 

for injunctive relief. The Court thus DENIES the Motion for a 

Preliminary Injunction. ECF No. 8. 

C. Motion for Permission to Appeal in Forma Pauperis

On April 18, 2022, Plaintiff filed two Notices of Interlocutory Appeal. 

See ECF Nos. 11, 12. The Court construes the second Notice as a Motion 

for Permission to Appeal in Forma Pauperis. 

Determining whether to permit or deny an applicant to proceed in 

forma pauperis is within the sound discretion of the Court. 28 U.S.C. 

§ 1915(a); Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). Courts 

should consider whether payment of the filing fee will result in the 

petitioner “suffering undue financial hardship.” Prows, 842 F.2d at 140. 

“This entails a review of other demands on individual plaintiffs’

financial resources, including whether the expenses are discretionary or 

mandatory.” Id.

Attached to this Notice is an affidavit that is substantially similar to 

the affidavit attached to Plaintiff’s Motion to Proceed in Forma Pauperis

(ECF No. 2), which the Court previously denied. See ECF Nos. 6, 10. 

Following a complete review of the applicable filings, the Court 

concludes that Plaintiff has sufficient income to pay the filing fee in this 

case without suffering undue financial hardship. 

Accordingly, in the Court’s sound discretion, and for the reasons 

stated in the Court’s previous Order denying leave to proceed in forma 

pauperis, the Court DENIES the Motion for Permission to Appeal in 

Forma Pauperis. ECF No. 12. 

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D. Motion to Stay and Reconsider

“The party requesting a stay bears the burden of showing that the 

circumstances justify an exercise of [the Court’s] discretion.” Nken v. 

Holder, 556 U.S. 418, 433–34 (2009). To determine whether to grant a 

stay pending appeal, courts consider four factors: “(1) whether the stay 

applicant has made a strong showing that he [or she] is likely to succeed 

on the merits; (2) whether the applicant will be irreparably injured 

absent a stay; (3) whether issuance of the stay will substantially injure 

the other parties interested in the proceeding; and (4) where the public 

interest lies.” Campaign for S. Equality v. Bryant, 773 F.3d 55, 57 (5th 

Cir. 2014) (quoting Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014)). 

But when “evaluating these factors, this court has refused to apply them 

‘in a rigid . . . [or] mechanical fashion.’” Id. (quoting United States v. 

Baylor Univ. Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983)).

Granting or denying a stay requires courts to exercise discretion, 

balancing the four factors set out above. Nken, 556 U.S. at 433–34. A 

court must thoughtfully consider these factors because “‘a stay is an 

intrusion into the ordinary processes of administration and judicial 

review’ and a party is not entitled to a stay as a matter of right.” Bryant, 

773 F.3d at 57 (quoting Nken, 556 U.S. at 427).

A Motion for Reconsideration, however, is governed by Federal Rule 

of Civil Procedure 59(e) when it “seeks reconsideration of an

interlocutory order.” Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 

636, 641 (S.D. Tex. 2010) (citation omitted). “Rule 59(e) serves the 

narrow purpose of allowing a party to correct manifest errors of law or 

fact or to present newly discovered evidence.” Templet v. HydroChem 

Inc., 367 F.3d 473, 479 (5th Cir. 2004) (quoting Waltman v. Int’l Paper 

Co., 875 F.2d 468, 473 (5th Cir. 1989)). Therefore, “such a motion is not 

the proper vehicle for rehashing evidence, legal theories, or arguments 

that could have been offered or raised before the entry of 

judgment.” Id. (citing Simon v. United States, 891 F.2d 1154, 1159 (5th 

Cir. 1990)).

Here, Plaintiff wholly failed to discuss the appliable standard for 

granting a stay. Further, Plaintiff does not point to any manifest error 

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of law or fact or any newly discovered evidence as a basis for the Court 

to grant reconsideration. The Court therefore concludes that he has not 

met his burden of showing that the circumstances justify an exercise of 

the Court’s discretion to grant a stay or to grant reconsideration. 

Accordingly, the Court DENIES the Motion to Stay and Reconsider. 

ECF No. 13. 

SO ORDERED on this 21st day of April, 2022.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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