Turner v. Lombardi et al

Filing 79

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Plaintiff's Pro Se Motion for Summary Judgment and His Suggestions in Support [ECF No. 57 ] is DENIED. IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment [ECF No. 62 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff's claims against Defendants are DISMISSED, with prejudice. Signed by District Judge E. Richard Webber on 9/23/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
TERRY TURNER,
Plaintiff,
v.
GEORGE A. LOMARDI, et al.,
Defendant.

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Case No. 2:15-CV-00048 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s renewed Motion to Appoint Counsel
[ECF No. 74], and Plaintiff’s Motion for Leave to Amend to Add Motion for Summary
Judgment [ECF No. 76].
I.

Background

Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to
a serious medical need in relation for medical treatment provided in regards to a demyelinating
disorder. [ECF No. 1]. Plaintiff’s motion to appoint counsel [ECF No. 74] is his fourth such
motion. The Court denied his first three motions to appoint counsel without prejudice. [ECF Nos.
34, 55]. Plaintiff’s Motion for Leave to amend his summary judgment motion, requests he be
able to add certain specific facts which show there are material facts at issue to the Court. [ECF
No. 76].
II.

Discussion
a. Appointment of Counsel
Plaintiff in his motion argues he is unable to afford counsel, has a limited knowledge of

the law, his cancer treatment causes him to be sick, and he has been unable to find a lawyer

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despite his best efforts. [ECF No. 74]. Defendants respond Plaintiff’s case does not present
complex factual or legal issues, he has personal knowledge of the medical care provided to him,
and Plaintiff has filed a summary judgment motion in this case adequately conveying his
arguments to the Court. [ECF No. 75]. Plaintiff in his response argues he did not file his own
complaint, but only did so with the help of a Mr. Burnside in the Northeast Correctional Center
in Bowling Green, MO, and he has no one to help currently help him with his case. [ECF No.
77].
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: (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.
As previously determined in a past orders on the issue of appointment of counsel,
Plaintiff’s claims are not frivolous allegations. However, Plaintiff has not shown an inability to
present his claims to the court, despite his few misspellings or grammar errors in his previous
motions. The legal issues in this case are not complex. Concerning the factual issues in regards to
medical treatment, significant investigative work will not be required, as the evidence in the case
will be found amongst his medical records. Further, Plaintiff argues he did not submit his
complaint himself, but had a fellow inmate at his prior correctional center file his complaint.
Plaintiff’s complaint and summary judgment motion was written and signed by Plaintiff, and

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presented his arguments in a coherent manner. Plaintiff’s addition of counsel at this time will not
substantially benefit him or the Court. In balancing all of the factors, the Court determines
counsel shall not be appointed at this time.
b. Motion for leave to amend
Plaintiff in his motion for leave to amend his motion for summary judgment [ECF No.
57], requests he be allowed to point out specific material facts at issue to this court. [ECF No.
76] Plaintiff is not presenting new facts or arguments, to the Court, but rather highlighting
previous assertions he has already made. The Court finds granting this motion does not
prejudice Defendants.
IT IS HEREBY ORDERED that Plaintiff’s renewed motion for appointment of counsel
[ECF No. 74] is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s pro se motion for leave to amend [ECF
No. 76] is GRANTED.
So Ordered this 23rd Day of September, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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