Malady v. Corizon et al

Filing 40

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiffs motion for appointment of counsel is DENIED without prejudice. [ECF No. 32] IT IS FURTHER ORDERED that plaintiffs motion for Consideration and Appropriate Court Orders is DENIED. [ECF No. 33] . IT IS FURTHER ORDERED that plaintiffs motion to compel discovery is DENIED as moot. [ECF No. 36] IT IS FURTHER ORDERED that plaintiffs motion to appoint medical expert is DENIED without prejudice. [ECF No. 37] Signed by District Judge Stephen N. Limbaugh, Jr on 10/30/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOHN TIMOTHY MALADY,
Plaintiff,
v.
CORIZON, et al.,
Defendants.

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No. 1:13CV80 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on each of plaintiff’s pending motions. Each
of them will be denied.
1.

Motion for Appointment of Counsel
There is no constitutional or statutory right to appointed counsel in civil cases.

Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers several factors,
including (1) whether the plaintiff has presented non-frivolous allegations supporting
his or her prayer for relief; (2) whether the plaintiff will substantially benefit from the
appointment of counsel; (3) whether there is a need to further investigate and present
the facts related to the plaintiff’s allegations; and (4) whether the factual and legal
issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.

After considering these factors, the Court finds that the facts and legal issues
involved are not so complicated that the appointment of counsel is warranted at this
time. Plaintiff has demonstrated an ability to present his claims to the Court in a
rational and coherent manner. The facts of the case, while they involve questions of
appropriate medical care, may be presented through the prison medical record and
plaintiff’s testimony. As a result, the Court will deny the motion to appoint counsel
without prejudice to refiling when the facts of the case are more fully developed.
2.

Motion for “Consideration and Appropriate Court Orders”
In this motion, plaintiff claims that he has been denied medical care in

retaliation for filing this lawsuit. Plaintiff requests that the Court conduct a “judicial
inquiry” into his claims.
The Court is not authorized to conduct investigations. The proper method for
plaintiff to seek relief on his new claims is to present the Court with a proposed
amended complaint and a motion seeking leave to file an amended complaint. Any
amended complaint will replace the original complaint and must contain all of
plaintiff’s claims. Therefore, the Court will deny this motion.
3.

Motion to Compel Discovery
Plaintiff’s motion to compel is premature because the Court has not authorized

discovery. See E.D. Mo. L.R. 16 - 5.01, 16 - 5.04 (discovery in prisoner cases may
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not take place until Court enters a Case Management Order). The Court will enter a
Case Management Order along with this Order. Consequently, the motion to compel
will be denied as moot.
4.

Motion to Appoint Medical Expert
The appointment of experts by court under Rule 706 of the Federal Rules of

Evidence should be reserved for exceptional cases in which ordinary adversary
process does not suffice. E.g., In re Joint Eastern and Southern Districts Asbestos
Litigation, 830 F. Supp. 686, 693 (E. & S.D.N.Y. 1993) (citing Fed. R. Evid. 706,
Advisory Comm. Note (“experience indicates that actual appointment is a relatively
infrequent occurrence”)).
As stated above, the facts of this case are unknown to the Court. As a result,
it is too early to determine whether the normal adversary process is sufficient for
plaintiff to present his case. The motion will be denied without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for appointment of
counsel is DENIED without prejudice. [ECF No. 32]
IT IS FURTHER ORDERED that plaintiff’s motion for “Consideration and
Appropriate Court Orders” is DENIED. [ECF No. 33]

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IT IS FURTHER ORDERED that plaintiff’s motion to compel discovery is
DENIED as moot. [ECF No. 36]
IT IS FURTHER ORDERED that plaintiff’s motion to appoint medical
expert is DENIED without prejudice. [ECF No. 37]
Dated this 30th day of October, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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