Bell v. Kansas City Police Department et al

Filing 192

ORDER DENYING APPOINTMENT OF COUNSEL. Signed on 10/11/11 by District Judge Greg Kays. (Francis, Alexandra) Modified on 10/11/2011 - mailed to pltf(Francis, Alexandra).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
ERIC E. BELL, Sr.,
Plaintiff,
vs.
OFFICER AARON L. BRYANT, and
OFFICER DAIN T. APPLE,
Defendants.

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No. 08-0456-CV-W-DGK

ORDER DENYING APPOINTMENT OF COUNSEL
This § 1983 action arises out of allegations that Defendants violated Plaintiff pro se Eric
Bell’s civil rights after a high speed chase by unlawfully tasering him. Now before the Court is
Plaintiff’s fifth Motion for Appointment of Counsel (doc. 165). The Court is reconsidering its
previous order1 denying appointment of counsel in light of the Eighth Circuit Court of Appeals
decision reversing in part entry of summary judgment in favor of all Defendants. Having carefully
considered the facts of this case and the relevant caselaw, Plaintiff’s application is DENIED.
A civil litigant has no constitutional or statutory right to a court-appointed attorney, but a
court may appoint counsel when an indigent prisoner has pleaded a nonfrivolous cause of action.
Phillips v. Jasper Cnty Jail, 437 F.3d 791, 794 (8th Cir. 2006). In determining whether to appoint
counsel, the court considers “the factual complexity of the issues, the ability of the indigent person
to investigate the facts, the existence of conflicting testimony, the ability of the indigent person to
present the claims, and the complexity of the legal arguments.” Id. When a court has denied a
motion to appoint counsel, it “should continue to be alert to the possibility that, because of

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This case was previously assigned to the Honorable Howard F. Sachs, Senior District Judge for the Western
District of Missouri. The case was reassigned on August 17, 2011.

procedural complexities or other reasons, later developments in the case may show either that
counsel should be appointed, or that strict procedural requirements should, in fairness, be relaxed to
some degree.” Id.
In the present case, Plaintiff has pled a nonfrivolous cause of action. While the Court may
appoint counsel, the Court holds the Phillips factors do not weigh in favor of appointing counsel
here.

First, this is a factually simple case. It concerns two questions: whether Plaintiff was

complying with Officers Apple and Bryant’s orders just before he was tasered, and if so, whether the
tasering caused Plaintiff injury that would suggest the force used was unreasonable. The officers
claim they tasered Plaintiff because he disobeyed orders to show his hands and get out of his truck
after leading the police on a high-speed chase that was ended by the use of speed sticks placed in the
roadway. Plaintiff maintains he complied with orders to place his truck in park, turn off the engine,
and place his hands in the air, but was tasered anyway. He also claims the tasering continued after
he was handcuffed, causing him to suffer an irregular heartbeat that required overnight
hospitalization for monitoring. While these competing versions of what happened are certainly
interesting, they are not so factually complex that they require an attorney’s assistance to present to a
jury.
Second, the Court finds Plaintiff does not need a lawyer to investigate and determine the
facts here. This lawsuit boils down to a “he said – she said” argument concerning whether the
Plaintiff complied with the officers’ orders before he was tased, not something factually complex
like causation in a products-liability lawsuit. Plaintiff was present at all the relevant events—the
alleged flight from police, the confrontation with officers Apple and Bryant, and the tasering—so
additional investigation will not uncover additional facts of which Plaintiff is unaware. Although
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there is conflicting factual testimony here, as there is in almost every case, there is little fact-finding
left to perform.
Finally, although this is a § 1983 lawsuit involving claims of qualified immunity which is an
inherently legally complex area of law, the recent Court of Appeals decision has clarified most of
these issues for the parties and the Court so that while the services of an attorney would be helpful to
Plaintiff, the appointment of counsel for Plaintiff at taxpayer expense is not justified.
Consequently, the Court declines to appoint Plaintiff counsel at the present time. The Court
is, however, mindful that future developments in this case may require the Court to revisit this issue.
The Court suggests Plaintiff contact the Missouri Bar’s lawyer referral service, (573) 6363635, for assistance in locating an attorney who will take his case. Given that this case is a
relatively straightforward § 1983 action which is already past the summary judgment stage of the
litigation and where an award of reasonable attorneys’ fees is available to a prevailing plaintiff, the
Court suspects Plaintiff can find a qualified attorney who will be willing to represent Plaintiff on a
contingent fee basis so that Plaintiff, who is indigent, will not be required to spend any money to
retain an attorney.
The Motion (doc. 165) is DENIED.
IT IS SO ORDERED.
DATE: October 11, 2011

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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