Johnson v. Cook et al

Filing 46

ORDER denying 43 Motion for Exhaustion of Remedies as premature and denying 44 Motion for Appointment of Counsel. Signed by Magistrate Judge J. Thomas Ray on 12/14/2017. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JAMES JOHNSON,
#M28313
V.

PLAINTIFF
3:17CV00041 KGB/JTR

DELL COOK, Chief; and
LUTHER WHITFIELD; Lieutenant,
Mississippi County Detention Center

DEFENDANTS

ORDER
Plaintiff James Johnson ("Johnson") is a prisoner proceeding pro se in this §
1983 action.

Johnson has filed two Motions, which the Court will address

separately.
I. Motion for Appointment of Counsel
Johnson seeks the appointment of counsel.

Doc. 44.

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 Athe 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.
Johnson'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.
Accordingly, his Motion for Appointment of Counsel is denied.
II. Motion on Exhaustion of Remedies
Johnson has filed a "Motion on Exhaustion of Remedies," asking the Court to
recognize that he has properly exhausted his administrative remedies as to the claims
he is raising in this lawsuit. Doc. 43.
Exhaustion is an affirmative defense that must be pled and proved by the
Defendants. Jones v. Bock, 549 U.S. 199, 219 (2007); Nerness v. Johnson, 401 F.3d
874, 876 (8th Cir. 2005). This means that it is not Johnson's obligation, at this time,
to present the Court with his exhaustion evidence.

However, if any of the

Defendants file a Motion for Summary Judgment on the issue of exhaustion, Johnson
will then have an opportunity to file a Response that explains how he properly
complied with the jail's exhaustion procedure and provides any evidence he may

have to support his argument. Accordingly, Johnson's Motion on Exhaustion of
Remedies is denied.
III. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Johnson's Motion for Appointment of Counsel (Doc. 44) is DENIED.

2.

Johnson's Motion on Exhaustion of Remedies (Doc. 43) is DENIED,

AS PREMATURE.
Dated this 14th day of December, 2017.

___________________________________
UNITED STATES MAGISTRATE JUDGE