Mcdonald v. Davis et al (INMATE1)

Filing 51

ORDER denying 50 Motion for appointment of counsel at this time. Signed by Honorable Charles S. Coody on 8/20/2010. (cc, )

M c donal d v. Davis et al (INMATE1)

Do c. 51

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA OF N O R T H E R N DIVISION D A V ID McDONALD, #252206, P la in tif f , v. K E N N E T H DAVIS, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ORDER P r e v io u s ly in this case, a Recommendation was entered that this case be dismissed b e c au s e the plaintiff failed to respond to the order of the court requiring him to file a re sp o n s e to the defendants' motion for summary judgment. That Recommendation was w ith d raw n , however, after the court found following a hearing that the plaintiff's illite ra c y impaired his ability to timely respond. On August 19, 2010, the plaintiff filed a m o tio n for appointment of counsel. The plaintiff contends that because the issues are c o m p le x and require research and investigation, the plaintiff requires counsel for his a ss is ta n c e. C o n tra ry to the plaintiff's contention, there is nothing complex about this case. The plaintiff contends that a prison guard used excessive force against him while he was w a itin g in the prison healthcare unit for X-rays for a back problem. McDonald alleges th a t because of pain he was unable to sit down when Officer Davis told him to do so. McDonald alleges that when he did not comply with the officer's order to sit, the officer " sla m m e d " him into a wall and then a water fountain. In short, this is a garden variety

C A S E NO. 2:08-cv-626-MEF (WO)

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excessive force case about which the law is well established. What is important in this c a s e at this juncture is the facts. The case is pending before the court on the defendants' m o tio n for summary judgment. For the court to decide whether the defendants are e n title d to judgment, the court must obtain from the plaintiff his views about the facts. There is no reason why the plaintiff, who has obviously had assistance cannot use that a ss ista n c e to file a writing with the court setting forth under oath or penalty of perjury his v e rs io n of what happened. In m a te s pursuing civil remedies have no established right to the appointment of c o u n s e l. See e.g., Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1 9 8 0 )(a p p o in tm e n t of counsel not required before involuntary transfer of inmate from p riso n to mental hospital); Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1 9 8 3 ). Hewitt merely stated, in dicta, that " Wolff [v. McDonnell, 418 U.S. 539 (1974)] re q u ire d ... the aid of a staff member or inmate in presenting a defense, provided the in m a te is illiterate or the issues complex." 459 U.S. at 465 n. 3. In Vitek, a plurality of the C o u rt stated that "prisoners who are illiterate and uneducated have a greater need for a ss ista n c e in exercising their rights" and that counsel is required for inmates "thought to b e suffering from a mental disease or defect requiring involuntary treatment" because " s u c h ... prisoner[s are] more likely to be unable to understand or exercise [their] rights." 4 4 5 U.S. at 496-97. These statements, taken together with Wolff, do not establish with c la r ity a right to counsel, and neither do any other controlling cases. T h e plaintiff has not demonstrated that he is unable with assistance to respond to

the defendants' motion for summary judgment by the October deadline which affords the

plaintiff ample time. Accordingly, the motion for appointment of counsel is DENIED at
th is time. D o n e this 20 th day of August, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE