Williams v. Lombardi et al

Filing 27

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Plaintiff's Motions for Appointment of Counsel (ECF Nos. 18, 25) are DENIED without prejudice.IT IS FURTHER ORDERED that Plaintiff shall Show Cause, in writing and no laterthan April 24, 2017 why t his case should not be dismissed for failure to prosecute and failure to comply with local and federal rules and the Orders of this Court, including the Case Management Order related to discovery. ( Show Cause Response due by 4/24/2017.). Signed by District Judge Ronnie L. White on 4/10/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CORNELIUS WILLIAMS, JR. ,
Plaintiff,
v.

GEORGE LOMBARDI, et al. ,
Defendants.

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No. 1:16CV102 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motions for Appointment of Counsel (ECF
Nos. 4). Upon review of the record, the Court will deny Plaintiff's motion.
Background

On May 18, 2016, Plaintiff filed a Prisoner Civil Rights Complaint under 42 U.S.C. §
1983 . Plaintiff was incarcerated at the Southeast Correctional Center ("SECC") when he filed
this action; however, he has since been released. Plaintiff alleges that he has Hepatitis C and
that, while incarcerated at the SECC, Dr. Michael Hakala and Dr. Cleveland Rayford refused to
give him treatment even though is ammonia levels were elevated. He further claims that
Defendant Becky Lizenbee, a nurse, did not always document his complaints and interfered with
his treatment. Finally, he alleges that Corizon, LLC, had a policy of refusing treatment to
Hepatitis C patients because treatment is expensive. Plaintiff also sought to hold Defendants
George Lombardi and Ian Wallace liable as a result of their supervisory duties. However, on
August 8, 2016, this Court dismissed those parties. (ECF No. 11)
On that same date, this Court also granted Plaintiffs Motion to Proceed in forma
pauperis. (ECF No. 10) On October 12, 2016, this Court entered a Case Management Order

setting forth, inter alia, the discovery deadlines in this cause of action. Currently pending are
Plaintiff's Motions for Appointment of Counsel. (ECF Nos. 18, 25) Plaintiff claims that
because of his poverty, he is unable to pay a reasonable attorney fee or obtain legal counsel,
despite diligent efforts to do so. (Id.) Additionally, Defendants have filed a Motion to Dismiss
for Failure to Cooperate in Discovery and Failure to Prosecute. (ECF No. 19)
Discussion
'"Indigent civil litigants do not have a constitutional or statutory right to appointed
counsel."' Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (quoting Edgington v. Missouri Dep 't
of Corr., 52 F.3d 777, 780 (8th Cir. 1995)). When determining whether to appoint counsel for an

indigent plaintiff, the Court should consider the factual and legal complexity of the case, the
existence of conflicting testimony, and the ability of the indigent person to investigate the facts
and present her claim. Id. (citing Swope v. Cameron, 73 F.3d 850, 852 (8th Cir. 1996)).
Upon review of Plaintiff's Complaint, the Court finds that appointment of counsel is not
warranted at this time. The facts of this case are not complex. Plaintiff raises only one claim:
Defendants failed and refused to properly treat his Hepatitis C virus while incarcerated at the
SECC, demonstrating deliberate indifference to his medical needs. Further, the undersigned
notes that Plaintiff has thus far clearly articulated and presented his legal claims to the Court, and
he is able to investigate the facts of his case. While Plaintiff contends that he has disabilities
preventing him from litigating his case, the Court notes that Plaintiff has been able to file several
motions and responses, as well as another federal Complaint for relief under § 1983 and the

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Americans with Disabilities Act ("ADA"). 1 Because the facts and the legal issues of this case
are not complex, the undersigned finds that at this time Plaintiffs motion should be denied.
In addition, the Court notes Defendants' Motion to Dismiss for Failure to Cooperate in
Discovery and Failure to Prosecute. Defendants argue that Plaintiff has failed to respond to their
request for initial disclosures, interrogatories, requests for production of documents, and notice
of deposition. Defendants request that the Court dismiss Plaintiffs Complaint as a sanction for
failing to attend his deposition, failing to respond to discovery requests, and failing to otherwise
prosecute or comply with the Federal Rules of Procedure and Orders of this Court.
"A pro se litigant is bound by the litigation rules as is a lawyer, particularly here with the
fulfilling of simple requirements of discovery. " Lindstedt v. City of Granby, 238 F.3d 933 , 937
(8th Cir. 2000); see also Escobar v. Cross, No. 4:12CV00023-JN, 2013 WL 709113, at *1 (E.D.
Ark. Feb. 27, 2013) ("Prose litigants are required to follow the same rules of procedure,
including the local court rules, that govern other litigants."). As this Court has denied Plaintiffs
request for appointed counsel, Plaintiff is responsible as a pro se litigant for following all rules
and orders, including the Case Management Order with regard to discovery. Although Plaintiff
has not done so, the Court will afford Mr. Williams the opportunity to show cause why this case
should not be dismissed for failure to prosecute or otherwise comply with the rules and Orders of
this Court.
According! y,

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On June 24, 2016, Plaintiff filed a Complaint against Ian Wallace, the warden of SECC; Omar
Clark, the deputy warden of SECC; Corizon, Inc.; Becky Lizenbee; Carl Jacobsen; and Jay
Gorham. Williams v. Wallace, et al., No. 1:16CV161 SNLJ. The court dismissed defendants
Corizon, Inc., and Becky Lizenbee on August 16, 2016. (ECF No. 8) Plaintiff also filed § 1983
cases in 2013 and 2014, respectively. See Williams v. Lombardi, et al., No. 1:13CV50 LMB;
Williams v. Lombardi, et al., No. 1:14CV105 ACL.

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IT IS HEREBY ORDERED that Plaintiffs Motions for Appointment of Counsel (ECF
Nos. 18, 25) are DENIED without prejudice.

IT IS FURTHER ORDERED that Plaintiff shall Show Cause, in writing and no later
than April 24, 2017 why this case should not be dismissed for failure to prosecute and failure to
comply with local and federal rules and the Orders of this Court, including the Case Management
Order related to discovery.

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Dated this 10th day of April, 201 7.

UNITED STATES DISTRICT JUDGE

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