Knight v. Edelman et al

Filing 83

ORDER denying 79 Motion to Appoint Counsel. Ordered by Judge Karen E. Schreier. (Schreier, Karen)

UNITED STATES DISTRICT COURT D I S TR IC T OF NEBRASKA TYR E LL KNIGHT, Plaintiff, vs. R A Y M O N D EDELMAN, sued in both h is individual and official capacities; U N K N O W N NOORDHOCK, Corporal, su e d in both his individual and official capacities; C A LV IN HAYWOOD, sued in both h is individual and official capacities; an d U N K N O W N PIPER, Sergeant, sued in b o t h his individual and official ca p a citie s, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 4 :0 6 C V 3 0 6 5

O R D E R DENYING P L A I N TI F F 'S MOTION FOR A P P O IN TM E N T OF C O U N S E L FOR TRIAL

P lain tiff, Tyrell Knight, pro se, requests that the court appoint him c o u n s e l for his upcoming trial. He asserts that he is homeless and cannot a ffo rd an attorney. He further asserts that because he is not an attorney, he d oe s not know how to conduct a trial. I n making a determination to appoint counsel, a court must determine w h e th e r the pro se litigant has presented a nonfrivolous claim and whether th e nature of the litigation will make the appointment of counsel of benefit to t h e litigant and the court. Battle v. Armontrout, 902 F.2d 701, 702 (8 t h Cir. 1 9 9 0 ). Several factors should be considered, including the pro se litigant's a b ilit y to investigate facts and present claims and the complexity of the factual a n d legal issues. Id. These factors are not an exclusive list and the weight

give n to any one factor will vary with the case. Johnson v. Williams, 788 F.2d 1 3 1 9 , 1323 (8 t h Cir. 1986). H e r e , Knight initially filed a complaint on March 24, 2006, asserting fe de ra l rights claims pursuant to 42 U.S.C. § 1983. More specifically, Knight a lle ge s that on February 23, 2006, caseworker Raymond Edelman and the o th e r defendants used excessive force which resulted in the infliction of p h ysica l injuries on Knight. Knight asserts that defendants' actions c o n s tit u t e d cruel and unusual punishment. Docket 1. Two months later, on M a y 24, 2006, Knight filed an amendment to the complaint, asserting he was su in g defendants in both their individual and official capacities. Docket 7. Throughout the course of this litigation, Knight has made various motions, in c lu d in g two motions for extension of time to pay an initial filing fee, a motion to sequester a video tape, a motion for extension of time to prepare paperwork, a motion for transport to the pretrial conference, and a motion for default ju d gm e n t. Dockets 8, 11, 10, 61, 68, 69. He has also filed interrogatories in r e g a r d to Raymond Edelman and an affidavit of another inmate in support of h is claims. Dockets 36, 45. Additionally, after his complaint was dismissed without prejudice be cau se he was released from custody and failed to file a new application to p r o c e e d in forma pauperis, Knight moved for reconsideration of the ruling, a ss e rt in g that he was confused and that he recently had been hospitalized. Dockets 52, 54. The court granted Knight's motion and reinstated the matter

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t o the active docket. Docket 57. On September 30, 2008, Knight appeared at th e final pretrial conference. The parties disclosed exhibits, agreed to u n c on tr ove rte d facts, set forth controverted and unresolved issues, disclosed w it n e s se s , estimated the length of trial, and determined the deadlines for trial b rie fs and proposed findings of fact and conclusions of law. Docket 70. The t ria l is currently set to commence on March 24, 2009. Docket 73. Knight has file d his trial brief and evidence index. Dockets 76, 77. B a s e d upon the record of this case, the court finds that Knight is not e n title d to appointment of counsel. Knight has demonstrated his ability to in ve stiga te facts by his recognition of the use of interrogatories as a method in w h ich to gather information from defendants, by his use of an inmate affidavit to support his claims, and by his request for a video tape of the alleged in c id e n t . Further, Knight has illustrated his ability to present claims by filing a co m p la in t and attending a pretrial conference in which he and opposing co u n se l determined uncontroverted facts and controverted facts in the case. F in a lly , Knight has shown that the factual and legal issues are not too co m p le x for him to understand. He has filed a trial brief, detailing a statement o f facts, proposed findings of fact, and applicable law and an exhibit index, w h ic h includes documents he believes are pertinent to his case. Also, sign ifica n tly, this is a bench trial, meaning that Knight's pro se status and e lo q u e n c e in the courtroom will not be subjected to jury scrutiny. Accordingly, th e court does not find that the appointment of counsel would benefit Knight

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or the court as Knight's claims do not appear so complex as to be beyond his ab ility to present and investigate the issues. B a se d on the foregoing, it is hereby O R D E R E D that plaintiff's motion for appointment of counsel for trial (D o ck e t 79) is denied. D a te d February 17, 2009. BY THE COURT:

/s/

Karen E. Schreier

KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

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