Burton v. Hoskins et al

Filing 115

MEMORANDUM AND ORDER re: 98 PRO SE MOTION Rule 60 (b) filed by Plaintiff Victor Ray Burton. IT IS HEREBY ORDERED that plaintiff's motion requesting the Court to reconsider its ruling denying plaintiff's request for appointment of coun sel and its ruling granting summary judgment in favor of defendants Amanda Gibson, Dr. Michael Hakala, Stephanie Kasting, and Terry Mitchell (ECF #98) is DENIED. Plaintiff's objection (ECF #99) to the ruling granting summary judgment in favor of the defendants is also DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 7/23/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
VICTOR RAY BURTON,
Plaintiff,
v.
STEPHANIE KASTING, et al.,
Defendants.

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Case No. 1:10CV165 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion requesting the Court to
reconsider its ruling denying plaintiff’s request for appointment of counsel and its ruling
granting summary judgment in favor of defendants Amanda Gibson, Dr. Michael Hakala,
Stephanie Kasting, and Terry Mitchell. The motion is fully briefed and ripe for
disposition. For the following reasons, the motion will be denied.
I.

Background
Plaintiff Victor Ray Burton filed this 42 U.S.C. § 1983 claim against defendants

who were on the medical staff at Southeast Correctional Center in Charleston, Missouri,
when plaintiff was incarcerated at that facility. Plaintiff complains of a delay in medical
treatment with regard to a hand injury. On March 11, 2013, this Court denied plaintiff’s
request for appointment of counsel. On June 24, 2013, defendants Gibson, Hakala,
Kasting, and Mitchell filed a motion for summary judgment. Plaintiff filed a response to
the motion. This Court examined the record before it and found that there was no genuine
issue of material fact as to plaintiff’s claim and that defendants had shown that they were

entitled to judgment as a matter of law. Therefore, the Court entered summary judgment
in the defendants favor on March 18, 2014.
On May 7, 2014 plaintiff filed a Rule 60(b) motion requesting that the Court
reconsider its order of March 11, 2013 denying his request for appointment of counsel
and its order of March 18, 2014 granting summary judgment to defendants Gibson,
Hakala, Kasting, and Mitchell. Plaintiff also filed an objection to the Court’s order of
March 18, 2014 granting summary judgment alleging that the Court erred with regard to
its findings of undisputed facts.
II.

Request for Appointment of Counsel
Plaintiff seeks reconsideration of this Court’s order of March 11, 2013 denying

plaintiff’s request for appointment of counsel. Plaintiff maintains that the denial of his
request for appointment of counsel was an abuse of discretion because “plaintiff simply
did not know what he was doing, as he didn’t understand the rules or their consequence
and he did not know how to properly pursue discovery or plead his case.” Plaintiff
further argues that the Court’s repeated denials of his requests for appointment of counsel
adversely affected his ability to respond to summary judgment because he did not
understand the rules.
The appointment of counsel for an indigent pro se plaintiff lies within the
discretion of the Court. Indigent civil litigants do not have a constitutional or statutory
right to appointed counsel. Stevens v. Redwing, et. al., 146 F.3d. 538, 546 (8th Cir.
1998); Rayes v. Johnson, 969 F.2d. 700, 702 (8th Cir. 1992). Once the plaintiff alleges a
prima facie claim, thereby surviving a frivolity review pursuant to 28 U.S.C. §1915(d),
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the Court must determine the plaintiff’s need for counsel to effectively litigate his claim.
Natchigall v. Class, 48 F.3d. 1076, 1081-82 (8th Cir. 1995); In re Lane, 801 F.2d. 1040,
1043 (8th Cir. 1986). The standard for appointment of counsel in a civil case involves
the weighing of several factors which include the factual complexity of a matter, the
complexity of legal issues, the existence of conflicting testimony, the ability of the
indigent to investigate the facts, and the ability of the indigent to present his claim. See
McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997); Stevens, 146 F.3d. at 546;
Natchigall, 48 F.3d. at 1081-82; Johnson v. Williams, 788 F.2d. 1319, 1322-23 (8th Cir.
1986).
Throughout the litigation, plaintiff made at least four requests for appointment of
counsel. On April 5, 2012, ruling on one of plaintiff’s requests, this Court held:
In this matter, the Court finds that appointment of counsel is not mandated at this
time. The plaintiff appears to be able to litigate this matter, as evidenced by his
discovery requests, citation of federal rules and authority, discovery motions, and
the Court's issuance of a third party subpoena upon his request, and nothing has
occurred to indicate any need to appoint counsel at this point in time. Moreover,
although plaintiff stated in his complaint that he contacted two law firms regarding
his case, he has not indicated whether he has made sincere efforts to obtain legal
counsel over the course of the following fourteen months between filing his
complaint and his motion requesting appointment of counsel. The Court will
continue to monitor the progress of this case, and if it appears to this Court that the
need arises for counsel to be appointed, and if plaintiff demonstrates that he has
made sincere efforts to obtain counsel but is unsuccessful, the Court will do so.
On December 17, 2012, ruling on a subsequent request, the Court held:
The Court notes that plaintiff appears to have made efforts to obtain counsel but
has been unsuccessful. However, plaintiff still appears to be able to litigate this
matter, as evidenced by his detailed motion, prior discovery requests, citation of
federal rules and authority, discovery motions, and the Court’s issuance of a thirdparty subpoena upon his request. As to plaintiff’s discovery-related concerns,
plaintiff’s earlier discovery motions were denied without prejudice, and, to the
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extent plaintiff believes he has not received all the documents to which he is
entitled, he should file a motion to compel with the Court. The Court will
continue to monitor the progress of this case, and if it appears to this
Court that the need arises for counsel to be appointed, the Court will do so.
Once again, upon review of this matter, this Court finds that the factual and legal
issues are not complex, there is very little conflicting testimony as the medical records
establish the essential facts, and plaintiff’s pleadings indicate his ability to state his
claims and legal arguments. There is nothing in the record to suggest that the demands of
self-representation exceeded plaintiff’s abilities. Although plaintiff did not specifically
dispute defendants’ statement of facts as required by local rule 4.01(e) and Federal Rule
of Civil Procedure 56(c)(1) for the summary judgment motion, it made no difference in
the outcome. Plaintiff’s version of the facts varied insignificantly from defendants’
statement of the facts. Both parties relied on plaintiff’s medical records, which provided
the essential, material facts with regard to summary judgment. This Court finds that there
was no error in denying plaintiff’s request for appointment of counsel. Therefore, there is
no basis for relief under Rule 60(d) from this Court’s denial of plaintiff’s request for
appointment of counsel.
III.

Summary Judgment
Plaintiff filed an objection to the Court’s order granting summary judgment for

defendants Gibson, Hakala, Kasting, and Mitchell. Plaintiff argues that the Court’s
determination that he did not dispute the record as required by local rule 4.01(e) and
Federal Rule of Civil Procedure 56(c)(1) was erroneous. Plaintiff argues he intended to
dispute defendants’ material facts but because he did not use the magic word dispute and

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did not know how to properly point to the record to support his dispute, the Court abused
its discretion in finding he failed to comply with local rule 4.01(e).
Additionally, plaintiff filed a motion requesting that this Court reconsider its order
granting summary judgment, set aside the judgment, and allow plaintiff another
opportunity to properly respond to the defendants’ motion for summary judgment. He
gives various reasons in support of his requests, all of them without merit. Plaintiff
argues that the Court improperly entered summary judgment in favor of the defendants
because defendants’ statements of facts were not supported with affidavits and the
documents relied on (plaintiff’s medical records) were not authenticated. Plaintiff further
argues that the Court incorrectly ruled that plaintiff needed to place verifying medical
evidence in the record to establish the detrimental effects of the delayed treatment, even
though his condition was obvious to a lay person, which made the need for verifying
medical evidence unnecessary. Finally, plaintiff argues that the Court’s reliance on the
decision in Johnson v. Hamilton, 452 F.3d 967 (8th Cir. 2006) was in error as the facts of
this case are distinguishable.
In support of his motion, plaintiff cites Federal Rule of Civil Procedure 60(b)(1)
which allows relief from a judgment or order based on a “mistake, inadvertence, surprise,
or excusable neglect.” However, “a party moving for reconsideration pursuant to any
portion of Rule 60(b) must establish exceptional circumstances to obtain the
extraordinary relief the rule provides.” R.G. Brinkmann Co. v. Amerisure Ins. Co.,
4:11CV1125 JAR, 2013 WL 328662, at *1 (E.D. Mo. January 29, 2013) (internal
quotations and citation omitted); U.S. v. Young, 806 F.2d 805, 806 (8th Cir. 1986)
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(“[Rule 60(b)] provides for extraordinary relief which may be granted only upon an
adequate showing of exceptional circumstances.”). “[T]he Eighth Circuit has cautioned
that exceptional circumstances are not present every time a party is subject to potentially
unfavorable consequences as a result of an adverse judgment properly arrived at.” Id.
(citing Atkinson v. Prudential Prop. Co., Inc., 43 F.3d 367, 373 (8th Cir.1994)). Here,
plaintiff fails to establish exceptional circumstances warranting relief from the Court’s
orders.
Contrary to plaintiff’s claims, the Court properly considered all the admissible
evidence when it entered summary judgment in favor of defendants. Plaintiff is correct
that the defendants’ facts were deemed admitted because plaintiff did not dispute them
with specific references to portions of the record as required by Local Rule 4.01(E) and
Federal Rule of Civil Procedure 56(c)(1). However, the Court also considered plaintiff’s
affidavit and the documents he submitted including supplemental documents filed by
plaintiff after summary judgment was fully briefed. The Court noted plaintiff’s attempt
to rectify procedural issues in his prior filings but concluded that despite some effort to
comply with the rules, the result was the same and defendants’ facts remained
undisputed. Significantly, the undisputed facts were based on plaintiff’s medical records,
which both defendants and plaintiff submitted to the Court. Further, this Court found that
“[e]ven under plaintiff’s version of the facts, he has not established that defendants were
deliberately indifferent to his serious medical needs or that any delay in treatment caused
or had a detrimental effect.”

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Moreover, plaintiff’s argument that the Court erred in granting summary judgment
because defendants’ statement of facts was unsupported is without merit. Defendants’
statement of facts was supported by plaintiff’s medical records, which were attached and
part of the record before this Court. Plaintiff did not object to the medical records and, in
fact, submitted a portion of the medical records in his filings with the Court.
Further, the Court’s conclusion that plaintiff’s failure to offer verifying medical
evidence to establish any detrimental effect of delay in medical treatment was correct and
not contrary to established law in the Eighth Circuit. Plaintiff argues that it would have
been obvious that a swollen and painful hand was broken and, therefore, he did not need
to offer verifying medical evidence. Plaintiff’s position, however, is contrary to well
established law. When an “inmate alleges that a delay in medical treatment rises to the
level of an Eighth Amendment violation, ‘the objective seriousness of the deprivation
should also be measured by reference to the effect of delay in treatment.’” Laughlin v.
Schriro, 430 F.3d 927, 929 (8th Cir. 2005). “To establish this effect, the inmate ‘must
place verifying medical evidence in the record to establish the detrimental effect of delay
in medical treatment to succeed.” Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir.
1997). This Court correctly applied these principles of law to this matter.
Finally, the Court’s reliance on the decision in Johnson v. Hamilton, 452 F.3d 967
(8th Cir. 2006) was proper. Plaintiff’s argument that the Court found that the facts in this
case were indistinguishable from the facts in Johnson only because plaintiff had not
disputed defendant’s facts is without merit. The material facts regarding the medical
treatment that plaintiff received (and did not receive) are not disputed. Contrary to any
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suggestion by plaintiff, those facts are clear from the medical records and plaintiff’s own
affidavit. What plaintiff disputes is whether the treatment he received (and did not
receive) rises to the level of deliberate indifference of a serious medical condition. In his
motion, plaintiff attempts to re-argue this issue. He has not established any mistake that
affected the judgment or raised any new arguments that justify an amendment of the
judgment.
IV.

Conclusion
Plaintiff’s objection and motion offers no valid reasons for reconsidering or

amending the judgment. There is no basis for relief under Rule 60(d) from this Court’s
order granting summary judgment in favor of defendants Amanda Gibson, Dr. Michael
Hakala, Stephanie Kasting, and Terry Mitchell.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion requesting the Court to
reconsider its ruling denying plaintiff’s request for appointment of counsel and its ruling
granting summary judgment in favor of defendants Amanda Gibson, Dr. Michael Hakala,
Stephanie Kasting, and Terry Mitchell (ECF #98) is DENIED. Plaintiff’s objection
(ECF #99) to the ruling granting summary judgment in favor of the defendants is also
DENIED.
Dated this 23rd day of July, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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