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Hathaway v. Lincoln Co. Police

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

April 13, 2017

LINCOLN CO. POLICE, et al., Defendants.



         Plaintiff, acting pro se, claims his constitutional rights were violated by Lincoln County, Missouri police in connection with the execution of search and arrest warrants and the investigation of a burglary reported by plaintiff, among other things. Plaintiff filed this lawsuit in state court against the defendants Lincoln County Police, Sgt. Chris Bosley, and Sean Flynn. Defendants removed the case to this Court citing federal question jurisdiction, 28 U.S.C. § 1331, among other bases.

         Currently before the Court are six pending motions filed by plaintiff. Each will be discussed in turn.

         I. Motion for Objection (#12)

         The Court construes plaintiff's “Motion for Objection” as a motion to remand the matter back to state court in Union County, Missouri. Plaintiff suggests that the matter should have remained in state court because plaintiff filed the case there and the events alleged in the complaint took place there. However, it is undisputed that plaintiff is asserting claims against defendant that arise under the United States Constitution. Federal law prescribes that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Plaintiff specifically states that he is asserting claims against defendants for violations of the “rights and protections secured by the State and United States laws and Constitutions.” (#3 at 1.) Plaintiff alleges facts that go to violations of plaintiff's rights under the United States Constitution. Removal to this Court was therefore proper, and plaintiff's motion will be denied.

         II. Motion to Compel (#13)

         Plaintiff filed a document titled “Motion for Compelling Discovery” on December 9, 2016. However, it does not appear that plaintiff had served discovery requests upon the defendants before filing his motion. Federal Rules of Civil Procedure 33 and 34 set out how plaintiff may request discovery from the defendants. Plaintiff should not seek a Court order compelling discovery until he can certify that he has “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). The motion will be denied.

         III. Motion to Strike (#16)

         Plaintiff seeks an order from the Court striking the documents filed by defendant's law firm because, plaintiff says, he has not received a notice of appearance filed by counsel. Plaintiff filed his motion on December 22, 2016, citing Rule 9 of the United States Supreme Court Rules had not been followed. That Rule, of course, applies to proceedings before the Supreme Court, however, not this Court. Regardless, entries of appearance were filed by defense counsel on November 18, 2016, and plaintiff has obtained those appearances (see #18). Plaintiff's motion is denied.

         IV. Ex Parte Motion (#18)

         Plaintiff requests information regarding how he can go about submitting an “ex parte motion” such that only the Court can see the motion. He says the motion “is very important in producing material and possible verbal evidence to substantive damage to plaintiff” and that “motion is for obtaining evidence which is crucial and available if still in possession of an individual or in a specific location.” It is entirely unclear why plaintiff is not able to make what appears to be a simple discovery request to defense counsel. Plaintiff should seek discovery from the defendants through their attorneys. Plaintiff's motion is denied.

         V. Motion for Records (#19) and Notice (#20)

         Plaintiff requests “all records, files, and motions be docketed from the County and District Court and an updated docket be sent to plaintiff.” The Clerk may send plaintiff an updated docket sheet. Plaintiff also requests that all “records, files, and motions be docketed from the County.” However, the Court has already docketed in this case the necessary documents from the state court file pursuant to 28 U.S.C. § 1446(a). Plaintiff also seeks “local court rules for Missouri, and print out of all case law referenced” due to his lack of legal resources. Plaintiff is responsible for prosecution of his case, and if he has a problem accessing legal materials, then he should file a motion with the Court seeking a continuance of any relevant deadlines. Further, to the extent this motion or plaintiff's “Notice” (#21) seeks appointment of counsel, 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, 146 F.3d. 538, 546 (8th Cir. 1998); Edgington v. Mo. Dept. of Corrections, 52 F.3d. 777, 780 (8th Cir. 1995); 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. Edgington, 52 F.3d. at 780; Natchigall v. Class, 48 F.3d. 1076, 1081-2 (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 (8th Cir. 1997); Stevens, 146 F.3d. at 546; Edgington, 52 F.3d. at 780; Natchigall, 48 F.3d. at 1080-1; Johnson v. Williams, 788 F.2d. 1319, 1322-323 (8th Cir. 1986). Here, the Court finds that appointment of counsel is not manDated: this time. The plaintiff appears to be able to litigate this matter, as this action still appears to involve straightforward questions of fact rather than complex questions of law, and plaintiff appears able to clearly present and investigate his claim. If plaintiff is being prevented from accessing legal resources or his files, the Court will be lenient with requests for ...

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