Harris v. Sanders et al
ORDER denying 9 Motion to Appoint Counsel. Further, granting 15 Motion to Compel and Plaintiff is directed to provide Defendants with the required discovery responses by 5:00 p.m. on September 30, 2011. Further, granting 16 Motion for Extension of Time to File and Defendants are given until October 31, 2011, to file their summary judgment motion. Signed by Honorable James R. Marschewski on September 14, 2011. (mfr)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
TYRONE D. HARRIS
Civil No. 6:10-cv-06091
SHERIFF LARRY SANDERS, Garland
County, Arkansas; MIKE McCORMICK,
Interim Police of Chief, Hot Springs Police
Department; PATROL OFFICER J.
WILLIAMS, Hot Springs Police Department;
NURSE M. REEVES, Garland County
Pending before me for decision are the following motions: (1) a motion for appointment of
counsel filed by the Plaintiff (Doc. 9); (2) a motion to compel (Doc. 15) filed by Separate Defendants
Sheriff Sanders and Nurse Reeves; and (3) a motion for an extension of time (Doc. 16) filed by
Separate Defendants Sheriff Sanders and Nurse Reeves. The motions will be addressed in turn.
Motion for Appointment of Counsel (Doc. 9)
Plaintiff filed this civil rights action pursuant to the provisions of 42 U.S.C. § 1983. He
proceeds pro se and in forma pauperis.
In Mallard v. United States District Court, 490 U.S. 296 (1989), the Supreme Court held that
28 U.S.C. § 1915 does not authorize a federal court to require an unwilling attorney to represent an
indigent litigant in a civil case. Section 1915 (e) (1) provides as follows: "the court may request an
attorney to represent any person unable to afford counsel." "Indigent civil litigants do not have a
constitutional or statutory right to appointed counsel." Edgington v. Missouri Dept. of Corrections,
52 F.3d 777, 780 (8th Cir. 1995) (citation omitted). "Once indigent pro se litigants meet their
burden of showing that their complaints are not frivolous . . . counsel should be [requested] if the
district court determines it is necessary." Id.
The decision to appoint counsel in civil cases is
committed to the discretion of the District Court. See Nelson v. Redfield Lithograph Printing, 728
F.2d 1003, 1004 (8th Cir.1984).
The standard used in determining the necessity of requesting counsel to represent the litigant
is whether both the litigant and the court would benefit from the assistance of counsel.
Edgington, 52 F.3d at 780. "'Factors bearing on this determination include: the factual complexity
of the issues; the ability of an indigent to investigate the facts; the existence of conflicting testimony;
the ability of an indigent to present his claim; and the complexity of the legal issues.'" Id. (quoting
Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir. 1995)). See also Stevens v. Redwing, 146 F.3d
538, 547 (8th Cir. 1998); Bumgarner v. Malin, 97 F.3d 1456 (8th Cir. 1996); Johnson v. Williams,
788 F.2d 1319, 1322-23 (8th Cir. 1986).
In support of his motion, Plaintiff states he has received discovery requests from the
Defendants and does not know what to do with the requests. He asks that he be appointed counsel.
A review of the file indicates Plaintiff has an understanding of the issues involved. The
documents filed by the Plaintiff have been easily understood. Discovery requests ordinarily seek
factual information about the claims asserted. As such, the Plaintiff is the only one who can respond
to the requests.
I note that Plaintiff is not incarcerated at this time and therefore has easy access to any
materials he might need including legal materials. At this stage, I find no justification for appointing
Plaintiff counsel. The motion (Doc. 9) is denied.
Motion to Compel (Doc. 15)
Separate Defendants Sheriff Sanders and Nurse Reeves have filed a motion to compel.
Defendants state they propounded interrogatories and requests for production of documents to the
Plaintiff on May 12, 2011. To date, Defendants state they have not received Plaintiff’s responses or
any communication from the Plaintiff regarding his responses.
Under the Federal Rules of Civil Procedure, Plaintiff had thirty (30) days to respond to the
discovery requests. Fed. R. Civ. P. 33(b)(3) & 34(b). Plaintiff did not request an extension of time
to respond to the discovery requests. Plaintiff has not responded to the motion to compel.
Therefore, Plaintiff has failed to respond in the time provided by law.
Accordingly, Defendants’ motion to compel (ECF No. 15) is granted. Plaintiff is directed
to provide Defendants with the required discovery responses by 5:00 p.m. on September 30, 2011.
If Plaintiff fails to provide the discovery responses, Defendants should notify the Court by filing a
motion to dismiss.
Motion for an Extension of Time (Doc. 16)
Separate Defendants Sheriff Sanders and Nurse Reeves request an extension of time to file
their summary judgment motion. The motion (Doc. 16) for an extension of time is granted.
Defendants are given until October 31, 2011, to file their summary judgment motion.
IT IS SO ORDERED this 14th day of September 2011.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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