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Burton v. Kasting

United States District Court, E.D. Missouri, Southeastern Division

July 23, 2014

ICTOR RAY BURTON, Plaintiff,
v.
STEPHANIE KASTING, et al., Defendants.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, Jr., District Judge.

This matter is before the Court on plaintiff's motion requesting the Court to reconsider its ruling denying plaintiff's request for appointment of counsel and its ruling granting summary judgment in favor of defendants Amanda Gibson, Dr. Michael Hakala, Stephanie Kasting, and Terry Mitchell. The motion is fully briefed and ripe for disposition. For the following reasons, the motion will be denied.

I. Background

Plaintiff Victor Ray Burton filed this 42 U.S.C. § 1983 claim against defendants who were on the medical staff at Southeast Correctional Center in Charleston, Missouri, when plaintiff was incarcerated at that facility. Plaintiff complains of a delay in medical treatment with regard to a hand injury. On March 11, 2013, this Court denied plaintiff's request for appointment of counsel. On June 24, 2013, defendants Gibson, Hakala, Kasting, and Mitchell filed a motion for summary judgment. Plaintiff filed a response to the motion. This Court examined the record before it and found that there was no genuine issue of material fact as to plaintiff's claim and that defendants had shown that they were entitled to judgment as a matter of law. Therefore, the Court entered summary judgment in the defendants favor on March 18, 2014.

On May 7, 2014 plaintiff filed a Rule 60(b) motion requesting that the Court reconsider its order of March 11, 2013 denying his request for appointment of counsel and its order of March 18, 2014 granting summary judgment to defendants Gibson, Hakala, Kasting, and Mitchell. Plaintiff also filed an objection to the Court's order of March 18, 2014 granting summary judgment alleging that the Court erred with regard to its findings of undisputed facts.

II. Request for Appointment of Counsel

Plaintiff seeks reconsideration of this Court's order of March 11, 2013 denying plaintiff's request for appointment of counsel. Plaintiff maintains that the denial of his request for appointment of counsel was an abuse of discretion because "plaintiff simply did not know what he was doing, as he didn't understand the rules or their consequence and he did not know how to properly pursue discovery or plead his case." Plaintiff further argues that the Court's repeated denials of his requests for appointment of counsel adversely affected his ability to respond to summary judgment because he did not understand the rules.

The appointment of counsel for an indigent pro se plaintiff lies within the discretion of the Court. Indigent civil litigants do not have a constitutional or statutory right to appointed counsel. Stevens v. Redwing, et. al., 146 F.3d. 538, 546 (8th Cir. 1998); Rayes v. Johnson, 969 F.2d. 700, 702 (8th Cir. 1992). Once the plaintiff alleges a prima facie claim, thereby surviving a frivolity review pursuant to 28 U.S.C. §1915(d), the Court must determine the plaintiff's need for counsel to effectively litigate his claim. Natchigall v. Class, 48 F.3d. 1076, 1081-82 (8th Cir. 1995); In re Lane, 801 F.2d. 1040, 1043 (8th Cir. 1986). The standard for appointment of counsel in a civil case involves the weighing of several factors which include the factual complexity of a matter, the complexity of legal issues, the existence of conflicting testimony, the ability of the indigent to investigate the facts, and the ability of the indigent to present his claim. See McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997); Stevens, 146 F.3d. at 546; Natchigall, 48 F.3d. at 1081-82; Johnson v. Williams, 788 F.2d. 1319, 1322-23 (8th Cir. 1986).

Throughout the litigation, plaintiff made at least four requests for appointment of counsel. On April 5, 2012, ruling on one of plaintiff's requests, this Court held:

In this matter, the Court finds that appointment of counsel is not mandated at this time. The plaintiff appears to be able to litigate this matter, as evidenced by his discovery requests, citation of federal rules and authority, discovery motions, and the Court's issuance of a third party subpoena upon his request, and nothing has occurred to indicate any need to appoint counsel at this point in time. Moreover, although plaintiff stated in his complaint that he contacted two law firms regarding his case, he has not indicated whether he has made sincere efforts to obtain legal counsel over the course of the following fourteen months between filing his complaint and his motion requesting appointment of counsel. The Court will continue to monitor the progress of this case, and if it appears to this Court that the need arises for counsel to be appointed, and if plaintiff demonstrates that he has made sincere efforts to obtain counsel but is unsuccessful, the Court will do so.

On December 17, 2012, ruling on a subsequent request, the Court held:

The Court notes that plaintiff appears to have made efforts to obtain counsel but has been unsuccessful. However, plaintiff still appears to be able to litigate this matter, as evidenced by his detailed motion, prior discovery requests, citation of federal rules and authority, discovery motions, and the Court's issuance of a thirdparty subpoena upon his request. As to plaintiff's discovery-related concerns, plaintiff's earlier discovery motions were denied without prejudice, and, to the extent plaintiff believes he has not received all the documents to which he is entitled, he should file a motion to compel with the Court. The Court will continue to monitor the progress of this case, and if it appears to this Court that the need arises for counsel to be appointed, the Court will do so.

Once again, upon review of this matter, this Court finds that the factual and legal issues are not complex, there is very little conflicting testimony as the medical records establish the essential facts, and plaintiff's pleadings indicate his ability to state his claims and legal arguments. There is nothing in the record to suggest that the demands of self-representation exceeded plaintiff's abilities. Although plaintiff did not specifically dispute defendants' statement of facts as required by local rule 4.01(e) and Federal Rule of Civil Procedure 56(c)(1) for the summary judgment motion, it made no difference in the outcome. Plaintiff's version of the facts varied insignificantly from defendants' statement of the facts. Both parties relied on plaintiff's medical records, which provided the essential, material facts with regard to summary judgment. This Court ...


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