Tatum v. Mitchell et al

Filing 49

ORDER denying 23 Plaintiff's Motion to Compel; denying 26 Plaintiff's Motion for Service; 38 Plaintiff's Motion for Service; granting 40 Plaintiff's Motion to Extend Time and a new deadline for providing service information for Defendant Mitchell will be imposed in the Initial Scheduling Order; denying 42 Plaintiff's Motion to Appoint Counsel; and denying 45 Plaintiff's Motion to Compel. Signed by Magistrate Judge J. Thomas Ray on 03/26/2013. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

ANTWAN TATUM
ADC #143961
V.

PLAINTIFF
2:13CV00151 DPM/JTR

MITCHELL, Sergeant,
East Arkansas Regional Unit, ADC, et al.

DEFENDANTS

ORDER
Plaintiff, Antwan Tatum, is a prisoner proceeding pro se in this § 1983 action.
He has recently filed several non-dispositive Motions, which the Court will address
separately.
I. Motion for Appointment of Counsel
Plaintiff seeks the appointment of counsel. Doc. 42. A pro se litigant does not
have a statutory or constitutional right to have counsel appointed in a civil case.
Phillips v. Jasper County Jail, 437 F.3d 791, 794 (8th Cir. 2006); Stevens v. Redwing,
146 F.3d 538, 546 (8th Cir. 1998). However, the Court may, in its discretion, appoint
counsel for a pro se prisoner if it is convinced that he has stated a non-frivolous claim
and that “the nature of the litigation is such that plaintiff as well as the court will
benefit from the assistance of counsel.” Johnson v. Williams, 788 F.2d 1319, 1322
(8th Cir. 1986). In making this determination, the Court must weigh and consider the

following factors: (1) the factual and legal complexity of the case; (2) the plaintiff's
ability to investigate the facts; (3) the presence or absence of conflicting testimony;
and (4) the plaintiff's ability to present his claims. Phillips, 437 F.3d at 794.
Plaintiff’s claims are not legally or factually complex. Furthermore, it appears
from the record that he is capable of presenting his claims without the benefit of
appointed counsel. Under these circumstances, the Court concludes that the pertinent
factors do not weigh in favor of appointment of counsel at this time. Thus, the Motion
for Appointment of Counsel is denied.
II. Motions to Compel
Plaintiff has filed two Motions asking the Court to compel Defendants to
provide him with certain information and documents. Docs. 23 & 45. That request
is premature because Defendants have not yet filed their Answers or other responsive
pleadings. After they do so, Plaintiff must mail his discovery requests and responses
directly to Defendants' attorney, without filing those requests or responses in the
record. See Fed. R. Civ. P. 5(d). If Defendants' answers violate the Federal Rules of
Civil Procedure, Plaintiff may then file a Motion to Compel with the Court. See Fed.
R. Civ. P. 33, 34, 36 & 37. Therefore, the Motions to Compel are denied.
III. Motions for Service
Plaintiff has filed two Motions asking the Court to serve Defendants Brooks
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and Mitchell. Docs. 26 & 38. The Court is currently in the process of attempting
service on Defendant Mitchell at his sealed forwarding address. Doc. 18.
Additionally, Plaintiff has not complied with the February 19, 2014 Order directing
him to provide a service address for Defendant Brooks.1 Doc. 20. Thus, the Motions
for Service are denied.
IV. Motion for an Extension of Time
Plaintiff has filed a Motion seeking an extension of time to provide a service
address for Defendant Mitchell. Doc. 40. The Court finds good cause for granting that
request. After Defendants file an Answer, the Court will issue an Initial Scheduling
Order that imposes a new deadline for providing that service information.
V. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff's Motion for Appointment of Counsel (Doc. 42) is DENIED.

2.

Plaintiff's Motions to Compel (Docs. 23 & 45) are DENIED.

3.

Plaintiff's Motions for Service (Docs. 26 & 38) are DENIED.

4.

Plaintiff's Motion for an Extension of Time (Doc. 40) is GRANTED, and

a new deadline for providing service information for Defendant Mitchell will be
imposed in the Initial Scheduling Order.
1

Once the other Defendants file an Answer or other responsive pleading, Plaintiff can mail
them discovery requests aimed at obtaining a valid service address for Defendant Mitchell.
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Dated this 26th day of March, 2014.

UNITED STATES MAGISTRATE JUDGE

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