Burton v. Hoskins et al

Filing 41

MEMORANDUM AND ORDER re: 38 MOTION to Appoint Counsel filed by Plaintiff Victor Ray Burton, 36 PRO SE MOTION to Compel Full Nonparty Subpoena or, in the Alternative, Appointment of Counsel filed by Plaintiff Victor Ray Burton. IT IS HEREBY ORDERED that plaintiff's motion to compel compliance with the subpoena, #36, and motion tor appointment of counsel, #38, are DENIED without prejudice. Signed by Honorable Stephen N. Limbaugh, Jr on 4/5/12. (CSG)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION
VICTOR R. BURTON,

)
)
)
)
)
)
)
)
)

Plaintiff,
·v.

BRYAN HOSKINS, et a!.,
Defendants.

FILED
APR - 5 2012
U. S. DISTRICT COURT
EASTERN DISTRICT OF MU
CAPE GIRARDEAU

Case No. 1:10CV165 SNLJ

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs Motion to Compel Full Nonparty Subpoena,
#36, and plaintiffs Motion for Appointment of Counsel, #38. In both motions, plaintiff seeks
the appointment of counsel to represent him and relief from Corizon, Inc. 's (formerly
Correctional Medical Services, Inc.), alleged refusal to fully comply with the subpoena issued
pursuant to the Court's Order of August 8, 2011. Therefore, the Court has taken these motions
under consideration together.
I. Corizon's Compliance with the Subpoena

Plaintiff asserts that non-party Corizon, Inc., has failed to comply with the Court's
subpoena, which referenced the documents requested by plaintiffs Requests for Production of
Documents and Things from Correctional Medical Services, Incorporated, #29. Plaintiff
complains that Corizon furnished an incomplete copy of plaintiffs medical records and objected
to every other one of his requests. Plaintiff makes specific reference to Corizon's refusal to
provide personnel and disciplinary records of Dr. Michael Hakala, Heather Annesser, Felicia
Dodge, Amanda Hill, Amanda Gibson, Terry Mitchell, and Stephanie Kastings. He also accuses
the defendants of attempting to "obstruct" his "efforts to litigate [his] complaint" and to "deceive

this court." Plfs Motion, #36, p. 4. Corizon responds that it has provided plaintiffs medical
records through December 2010, has requested the remainder of his records, and will provide
those records when it receives them. Corizon objects to the requests for records relating to nonparty Heather Annesser and dismissed defendants Felicia Dodge and Amanda Hill on the basis of
relevance and privacy/security concerns and because they are not parties to this lawsuit. l Corizon
likewise objects to plaintiffs request relating to Dr. Hakala's records on relevance and
privacy/security grounds.
Based upon the pleadings, the Court is unwilling to intercede in this dispute at this time .
.While plaintiff has included a copy of a letter he sent to counsel for Corizon requesting the
missing records and expressing his desire to "continue to be cooperative and allow you and those
you represent to fully comply" prior to "seeking further court action," he has not demonstrated
compliance with this Court's requirement that he make a good-faith effort to confer with counsel
for Corizon in an attempt to resolve this discovery dispute prior to filing his motions. See E.D.
Mo. L.R. 37-3.04(A); Plfs letter, #36-2. In addition, plaintiff concedes that Corizon has
furnished part of his medical records, and Corizon states that it will furnish the remainder when it
receives them. Moreover, Corizon's objections, especially with regard to the personnel records
of non-parties to this action, appear to be valid, but both the objections and plaintiffs motions
lack argument with sufficient specificity. Therefore, the Court will deny plaintiffs motion to
compel without prejudice.

lThe Court dismissed Felicia Dodge and Amanda Hill as defendants in its Order of May
18,2011. In his complaint, plaintiff named a nurse with the first name "Heather and last-name
initial "E." as a defendant. Plfs CompI. p. 17 ~ 4. Plaintiffs motion and request for production
are silent regarding whether Heather Annesser is the same person as the defendant "Heather E."
-2­

II. Plaintiffs Requests for Appointment of Counsel
The Court now turns to plaintiffs requests that it appoint counsel to represent him in this
case. 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); Edgington v. Mo. Department of
Corrections, 52 F.3d. 777, 780 (8th Cir. 1995); 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), the Court must determine the plaintiffs need for counsel to
effectively litigate his claim. Edgington, 52 F.3d. at 780; 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 (8th Cir. 1997); Stevens, 146 F.3d. at
546; Edgington, 52 F.3d. at 780; Natchigall, 48 F.3d. 1076, 1080-81; Johnson v. Williams, 788
F.2d. 1319, 1322-1323 (8thCir. 1986).
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
-3­

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.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to compel compliance with the

subpoena, #36, and motion tor appointment of counsel, #38, are DENIED without prejudice.
Dated thisfll day of April, 2012.

MHJL

STEPHEN N. LIMBA~, JR.
UNITED STATES DISTRICT JUDGE

-4­