Moses v. Winter et al

Filing 28

ORDER granting 27 Response (Non Motion) filed by Tyrone V Moses, which the Court construes as a motion for extension of time to respond to defts' motion for summary judgment 23 . Plaintiff is granted 30 days from the date of this Order in which to respond. Plaintiff's request for the appointment of counsel is denied without prejudice. 26 . Signed by Magistrate Judge Jerome T. Kearney on 9/13/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
TYRONE V. MOSES,
ADC #153122
v.

PLAINTIFF

4:12CV00489-DPM-JTK

LPN WINTER, et al.

DEFENDANTS
ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment (Doc. No.
23). By Order dated July 22, 2013, this Court directed Plaintiff to file a Response to the Motion
within fifteen days (Doc. No. 27). Plaintiff filed a Response, stating he does not understand the
Court’s Order and cannot afford to hire an attorney, and asks the Court for “help.” (Doc. No. 27).
The Court construes Plaintiff’s Response as a Motion for Extension of Time, and will grant
him an additional thirty days in which to respond to Defendants’ Motion. Plaintiff’s Response shall
address Defendants’ arguments that they treated Plaintiff for his medical conditions and that they
did not act with deliberate indifference to his serious medical need.
To the extent that Plaintiff’s Response should be construed as a request for Counsel, the
Court will deny such at this time. While a pro se litigant has no statutory or constitutional right to
appointed counsel in a civil case, Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998), the Court
may, in its discretion, appoint counsel for non-frivolous claims where “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 evaluating the plaintiff’s request in Johnson,
the Court considered four 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

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plaintiff's ability to present his claims. Id. at 1322-23.
Having considered the above factors, the Court finds that Plaintiff’s request should be denied
at this time. Plaintiff’s claims are not legally or factually complex, and the record demonstrates
Plaintiff is capable of proceeding without the benefit of appointed counsel. Accordingly,
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Extension of Time (Doc. No.
27) is GRANTED. Plaintiff shall file a Response to Defendants’ Motion for Summary Judgment
within thirty days of the date of this Order. Failure to respond will result in: (a) all of the facts set
forth in Defendants’ summary judgment papers being deemed admitted by Plaintiff, pursuant to
Local Rule 56.1(c); or (b) the dismissal without prejudice of Plaintiff’s Complaint, for failure to
prosecute, pursuant to Local Rule 5.5(c)(2).
Plaintiff’s request for the appointment of counsel is DENIED without prejudice.
IT IS SO ORDERED this 13th day of September, 2013.

______________________________________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE

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