           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 9, 2009

                                     No. 08-11082                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



TRACY ANN SANCHEZ

                                                   Plaintiff - Appellant

v.

ELAINE CHAPMAN, Warden; GINNY VAN BUREN; TECORA BALLOM,
MD; BEATRICE PARRA, MD; TODD WILCOX, MD; RONALD THOMPSON,


                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:08-CV-504


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Tracy Ann Sanchez (“Sanchez”), a federal prisoner,
appeals the district court’s denial of her motion for appointment of counsel. We
VACATE and REMAND.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-11082

                                  I. BACKGROUND
       In 1998, Sanchez was diagnosed with a hereditary and terminal disease
for which she requires a dual liver and kidney transplant. In December 2003,
Sanchez was sentenced to 360 months imprisonment for engaging in a
continuing criminal enterprise related to distribution of marijuana. She has
been incarcerated at Federal Medical Center Carswell (“Carswell”) since
January 2004. Sanchez was on an organ transplant waiting list at the time of
her sentencing. At her sentencing hearing, she requested a downward departure
based on her severe illness. The Government, however, declined to request a
downward departure after Sanchez fled to Mexico for five months while she was
on pre-trial release. In 2006, the sentence was upheld following direct appeal1
and habeas relief was denied in 2007.
       During her incarceration, Sanchez submitted several administrative
requests regarding a release for the purpose of obtaining a transplant. 2 Her
requests were reviewed by the prison’s Organ Transplant Committee, among
other entities, but were eventually denied in November 2005 due to the
advanced nature of her illness.             Sanchez filed timely appeals with the
appropriate prison officials.         Meanwhile, her condition worsened as she
developed complications from dialysis, and she was hospitalized several times
during the grievance process.
       On August 18, 2008, Sanchez filed a pro se suit against Carswell’s officials
and members of its medical staff in the Northern District of Texas. She alleged


       1
        After the sentence was upheld on direct appeal, the Supreme Court remanded for
reconsideration in light of United States v. Booker, 543 U.S. 220 (2005). On remand to the
Tenth Circuit, the appeal was dismissed. United States v. Sanchez, 161 F. App’x 778 (10th Cir.
2006).
       2
         As of September 2005, the public defender who represented Sanchez in her direct
appeal also advised Sanchez on her administrative requests within the Bureau of Prisons. It
is unclear from the record when counsel’s representation ended. However, Sanchez proceeded
pro se in her habeas petition and administrative appeals.

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that their delay in access to medical care amounted to deliberate indifference in
violation of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and the
Federal Tort Claims Act. Sanchez attempted without success to obtain counsel
and ultimately filed a motion for appointment of counsel. The district court
denied the motion. Sanchez timely filed this appeal.
                                     II. ANALYSIS
       We review a district court’s denial of a motion for appointment of counsel
for abuse of discretion. Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985).
       While the trial court is not required to appoint counsel for an indigent
plaintiff asserting a claim under 42 U.S.C. §1983, the court has discretion to
appoint counsel if doing so would advance the proper administration of justice.
Branch v. Cole, 686 F.3d 264, 266-67 (5th Cir. 1982). The district court should
consider four factors in ruling on request for appointed counsel: “(1) the type and
complexity of the case; (2) whether [Sanchez] is capable of adequately presenting
[her] case; (3) whether [Sanchez] is in a position to investigate adequately 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.” Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1985). In
considering motions for appointment of counsel in section 1983 cases, district
courts should make specific findings on each of the Ulmer factors rather than
deciding the motion in a conclusory manner. Jackson v. Dallas Police Dep’t, 811
F.2d 260, 262 (5th Cir. 1986).
       In the order denying Sanchez’s motion for appointment of counsel, the
district court stated only, “After review and consideration of the motion under
this standard, the Court concludes that the motion must be denied.” The district
court cited case law,3 but stated a conclusion without examining the Ulmer

       3
        The district court cited Vinson v. Heckmann, 940 F.2d 114,116 (5th Cir. 1991), Hulsey
v. Texas, 929 F.2d 168, 172 (5th Cir. 1991), and Jackson, 811 F.2d at 261. Vinson and Hulsey

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factors. While we have affirmed the district court’s denial of appointment of
counsel when the district court has not explained its application of the Ulmer
factors, we have only done so when the record shows with sufficient clarity the
facts underlying the district court’s decision. See, e.g., McAlister v. Livingston,
No. 08-20297, 2009 WL 3199690, *16 (5th Cir. Oct. 6, 2009) (unpublished per
curiam); Jackson, 811 F.2d at 262. In this case, the record does not clearly
demonstrate the basis for the court’s decision. Sanchez has proceeded pro se on
several claims, but her severe illness may impact the analysis of one or more of
the Ulmer factors. Accordingly, we vacate the district court’s order denying the
appointment of counsel.
      Under most circumstances, we would remand to the district court to
provide specific findings as to why counsel was denied. See Robbins, 750 F.2d
at 413; see also Ulmer, 691 F.2d at 213. Here, however, we are presented with
peculiar circumstances. We note that approximately fifteen months have passed
since Sanchez filed her pro se claim alleging deliberate indifference in medical
treatment.     Further, we have stated that “[d]eliberate indifference is an
extremely high standard to meet.” Domino v. Texas Dep’t of Crim. Justice, 239
F.3d 752, 756 (5th Cir. 2001). For a prison official to be liable for deliberate
indifference, the plaintiff must show that “the official knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S.
825, 837 (1994).     To meet this evidentiary burden, Sanchez will likely be
required to engage in extensive discovery and document review related to
lengthy treatment periods. Moreover, the limitations on Sanchez’s litigating



are inapposite to the case sub judice, as they involved motions for appellate counsel. In
Jackson, we stated, “The failure to issue findings frustrates appellate review and cannot
ordinarily be accepted.” 811 F.2d at 262.

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abilities are exacerbated by her deteriorating health condition. Accord Ulmer,
691 F.2d at 213 (listing ability to investigate adequately as a factor to consider
in motions to appoint counsel).        Accordingly, based on these peculiar
circumstances, we remand to the district court with instructions to appoint
counsel.   This unusual course of action is required to “advance the proper
administration of justice.” Branch, 686 F.3d at 266-67.
                              III. CONCLUSION
      For the foregoing reasons, we VACATE the district court’s order and
REMAND with instructions to appoint counsel.




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