Turner v. Roach et al

Filing 27

MEMORANDUM AND ORDER re: 18 MOTION for Disclosure filed by Plaintiff David O. Turner, 11 MOTION to Appoint Counsel filed by Plaintiff David O. Turner, 21 MOTION to Compel filed by Plaintiff David O. Turner. IT IS HEREBY ORDERED that plaintiff&# 039;s motion for appointment of counsel, #11, andhis subsequent such requests in his motion for disclosure of documents and motion to compel discovery, are DENIED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion for disclosure of documents, #18, and motion to compel discovery, #21, are DENIED without prejudice. Signed by Honorable Stephen N. Limbaugh, Jr on 4/3/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DAVID TURNER,
Plaintiff,
v.
JOHN ROACH,
Defendant.

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Case No. 1:11CV168 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on the plaintiff’s Motion for the Appointment of Counsel,
filed November 14, 2011, #11, Motion for Disclosure of Documents, filed December 30, 2011,
#18, and Motion to Compel Discovery, filed March 9, 2012, #21. Defendants have responded to
each of these motions, and they are ripe for disposition.
I. Background
Plaintiff alleges that on November 4, 2010, he was strip searched by defendant John
Roach, a correctional officer, and that Roach purposefully slammed his head into a door frame,
lacerating plaintiff’s forehead. Plaintiff admits that he possessed contraband and struggled with
defendant until he could swallow it. Plaintiff has alleged an excessive force claim against Roach,
and his other claim against two other correctional officers was previously dismissed by the Court
pursuant to 18 U.S.C. § 1915. In his motions, plaintiff requests that the Court appoint counsel to
represent him because he is without sufficient funds to hire an attorney, because of the
complexity of the case, and due to his lack of legal education, and he also requests relief for
alleged discovery violations.
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II. Plaintiff’s Motion and Requests for Appointment of Counsel
Plaintiff has requested the appointment of counsel in all three of his motions referenced
above. 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, 146 F.3d. 538, 546 (8th Cir. 1998); Edgington v. Mo. Dept. 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 plaintiff’s 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. at 1080-81; Johnson v. Williams, 788 F.2d.
1319, 1322-1323 (8th Cir. 1986).
In this matter, the Court finds that appointment of counsel is not mandated at this time.
Plaintiff has demonstrated his ability to litigate this case as evidenced by his pleadings, including
discovery motions, and although plaintiff states that he is being temporarily assisted by another
inmate, which assistance will be ending in the future, nothing has yet occurred to indicate any
need to appoint counsel at this point in time. This action appears to involve straightforward

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questions of fact regarding a single incident, and plaintiff appears able to present and investigate
his claim and file pleadings and disclosures according to the Federal Rules of Civil Procedure.
III. Plaintiff’s Discovery Requests
In his motion for disclosure of documents, #18, plaintiff lists eight requests for
documents and/or video footage but does not seek relief from the Court regarding those
discovery requests. In his subsequent motion to compel, #21, plaintiff requests that the Court
compel defendant to provide some of the previously demanded documents and photograph prints
of the video footage. According to counsel for defendant, plaintiff’s Motion for Disclosure of
Documents was filed without plaintiff having first requested discovery via a request for
production of documents and things pursuant to Fed. R. Civ. P. 34. Plaintiff disputes this and
has furnished the Court a copy of his “Initial Request and Disclosure under Fed. R. Civ. P. 34
and 26(a),” #16. See also #13-1. Although confusing, it can be inferred from plaintiff’s
pleading, #16, that he not only intended to disclose information to defendant thereby, but to also
propound discovery requests. In response, defendant states that he has provided plaintiff with 85
pages of documents as part of his Rule 26(a) initial disclosures as well as 203 pages of additional
documents and video footage responsive to the discovery demanded by plaintiff’s motion to
compel.1
Defendant contends that the documents and video footage he has provided constitutes all
that he is able to provide and that plaintiff failed to confer with defendant in an attempt to resolve
this discovery dispute prior to filing his motions pursuant to E.D. Mo. L.R. 37-3.04(A). In the

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In addition, the record reflects that defendant has recently filed a motion for summary
judgment with 88 pages of exhibits.
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certificate of service attached to his motion to compel, plaintiff asserts that “has in good faith
conferred or has attempted to confer with Defendant to make disclosures or discovery in
accordance with [Rule 37],” but that defendant has only tried to “manipulate the situation and
prevent Plaintiff from adequately presenting his case by defendant’s refusal to turn over the
requested items.” Plf’s Motion to Compel, #21, p. 4. However, plaintiff fails to recite the “date,
time and manner of such conference, and the names of the individuals participating thereto” or
his specific “efforts made to confer with opposing counsel” as required by the rule. See E.D. Mo.
L.R. 37-3.04(A).
Upon review of the pleadings, the Court finds that plaintiff has failed to make the
necessary effort to resolve this discovery dispute prior to seeking court intervention. Although
plaintiff is acting pro se, and his pleadings are held to a less stringent standard, he must still
comply with the Rules of Civil Procedure, including local rules. See American Inmate Paralegal
Assoc. v. Cline, 859 F.2d 59, 61 (8th Cir. 1988). Moreover, it is not clear from plaintiff’s
pleadings whether he has attempted to or has been allowed by prison personnel to view the video
footage or to obtain copies of available policies from them. Again, defendant has stated that he
has provided all documents and footage that he is able to provide, and the Court notes that Rule
34 provides for the production of documents and things within “the responding party’s
possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Therefore, the Court will deny
plaintiff’s motion for disclosure and motion to compel without prejudice. If, upon further review
of defendants supplemental disclosures and exhibits, and if and when plaintiff has made sincere
efforts to confer or attempt to confer with counsel for defendant on this matter, the Court will
entertain a further motion to compel. If plaintiff needs additional time to review the documents
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and footage provided by defendant, he may request an extension of time to respond to
defendant’s recently-filed motion for summary judgment.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for appointment of counsel, #11, and
his subsequent such requests in his motion for disclosure of documents and motion to compel
discovery, are DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for disclosure of documents, #18,
and motion to compel discovery, #21, are DENIED without prejudice.
Dated this 3rd day of April 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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