Ditter v. Nebraska Department of Correctional Services et al

Filing 20

MEMORANDUM AND ORDER - that Plaintiff's Motion for Appointment of Counsel (Filing 19 ) is denied without prejudice to reassertion should this matter ultimately bescheduled for trial. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID DITTER,

)
)
Plaintiff,
)
)
v.
)
)
NEBRASKA DEPARTMENT OF
)
CORRECTIONAL SERVICES,
)
SCOTT FRAKES, in his individual & )
official capacity, RANDY T. KOHL, )
MD, in his individual & official
)
capacity, CORRECT CARE
)
SOLUTIONS, RONALD OGDEN,
)
DDS, in his individual & official
)
capacity, and LISA MATHEWS, in
)
her individual & official capacity,
)
)
Defendants.
)
)

4:16CV3159

MEMORANDUM
AND ORDER

Plaintiff has again moved for appointment of counsel, stating that he has limited
access to the law library; expert testimony will be necessary, and a lawyer is needed
to conduct cross-examination of the expert; a lawyer would be better equipped to
present evidence and examine witnesses at trial, especially considering Plaintiff’s
“Hearing Disability in both ears”; and Plaintiff has sent letters to approximately 25
attorneys seeking representation, all of whom have refused. (Filing 19, at CM/ECF
pp. 1-2; Filing 12 at CM/ECF p. 10.)
This case is still in its early stages, as the court has only recently reviewed
Plaintiff’s amended complaint (Filing 14; Filing 16) and ordered service of process,
which is to be completed by mid-July, 2017. At this stage of the proceedings, it is not
clear that Plaintiff and the court will benefit from the appointment of counsel. Phillips
v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006) (there is no constitutional or

statutory right to appointed counsel in civil cases, and 28 U.S.C. § 1915(e) says court
“may” appoint counsel; “relevant criteria for determining whether counsel should be
appointed include 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”);
Trotter v. Lawson, 636 F. App’x 371, 373 (8th Cir. 2016) (unpublished) (appointed
counsel may not be warranted early in proceedings and when it is not clear that
plaintiff has difficulty in obtaining and presenting admissible evidence and lacks skills
to present case to jury); Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (“Indigent
civil litigants do not have a constitutional or statutory right to appointed counsel. The
trial court has broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel[.]” (internal citation and quotation marks
omitted)).
Thus, Plaintiff’s request for the appointment of counsel will be denied without
prejudice to reassertion should this matter ultimately be scheduled for trial.
IT IS ORDERED that Plaintiff’s Motion for Appointment of Counsel (Filing
19) is denied without prejudice to reassertion should this matter ultimately be
scheduled for trial.
DATED this 15th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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