Brannan v. Bridgeton Police Department et al

Filing 31

MEMORANDUM AND ORDER re: 29 MOTION to Appoint Counsel filed by Plaintiff Harrell S. Brannan motion is denied without prejudice.. Signed by District Judge John A. Ross on 7/10/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HARRELL S. BRANNAN,
Plaintiff,
v.
KEVIN FORCE, et al.,
Defendants.

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No. 4:14-CV-60-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Appoint Counsel. (Doc. No. 29)
Defendants filed a memorandum in opposition to Plaintiff’s motion. (Doc. No. 30) Plaintiff did
not file a reply. The motion is, therefore, fully briefed and ready for disposition. For the
following reasons, the motion will be denied without prejudice.
Plaintiff states that because he is incarcerated, he has been unable to obtain depositions to
support his claims of excessive force and unlawful arrest. Plaintiff seeks deposition of: (1) the
medical technician at DePaul Hospital who can testify as to the seriousness of his injuries; (2) the
owner of the car wash who can testify to the accuracy of the video camera which showed that no
one entered or exited the carwash stall while Plaintiff was inside; and (3) passenger Christopher
M. Giaimo, who can testify that on the day of the arrest, no one entered the car wash stall and the
officer did not identify himself. Plaintiff further states that appointed counsel is necessary to
present evidence at trial and cross-examine witnesses.
The appointment of counsel for an indigent pro se plaintiff lies within the discretion of
the Court, as there is no constitutional or statutory right to appointed counsel in civil cases.
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Phillips v. Jasper County Jail, 437 F.3d 791, 794 (8th Cir.2006) (citation omitted). “When
determining whether to appoint counsel for an indigent civil litigant, the district court considers
relevant factors such as the complexity of the case, the ability of the indigent litigant to
investigate the facts, the existence of conflicting testimony, and the ability of the indigent to
present his claim.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (citing Johnson v.
Williams, 788 F.2d 1319, 1322–23 (8th Cir.1986)).
Upon consideration of these factors, the Court finds that appointment of counsel is not
mandated at this time. The issues in this case are not complex and thus far Plaintiff has
demonstrated he is able to articulate and present his claims. Plaintiff should be guided by the
Federal Rules of Civil Procedure with respect to the discovery he wishes to pursue, in particular
Rule 45 concerning the issuance of subpoenas. Although Plaintiff will not be able to take
depositions by oral examination under Rule 30 because he is incarcerated, he may take
depositions by written questions as authorized by Rule 31. He may also direct interrogatories,
requests for production of documents, and requests for admissions to Defendants. Stockdale v.
Stockdale, 2009 WL 4019504, at *1-2 (E.D.Mo. Nov. 18, 2009).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for appointment of counsel [29] is
DENIED without prejudice.
Dated this 10th day of July, 2014.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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