Webb v. Johnson et al
MEMORANDUM AND ORDER - Plaintiff's motion for reconsideration (Filing 33 ) is denied. Plaintiff's motion to serve interrogatories (Filing 25 ) is denied. Plaintiff's motion for production (Filing 31 ) is denied. Plaintiff's mo tion to waive service fee (Filing 23 ) is denied. Plaintiff's motion for answers to interrogatories (Filing 27 ) is denied. Plaintiff's motion to appoint counsel (Filing 29 ) is denied. On the court's own motion, Plaintiff shall hav e until September 16, 2021, to file an amended complaint in accordance with the court's Memorandum and Order of May 19, 2021. The Clerk of Court is directed to reset the pro se case management deadline accordingly. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
In a Memorandum and Order entered on May 19, 2021, the court found on
initial review that Plaintiff’s Complaint plausibly alleges that unknown correctional
officers violated his rights to substantive and procedural due process under the
Fourteenth Amendment, but in all other respects fails to state a claim upon which
relief may be granted. The court ordered that the action would proceed to service of
process against Defendant Brad Johnson, Director of Lancaster County Department
of Corrections (“LCDC”), in his official capacity only, and solely for the purpose of
permitting Plaintiff to serve written interrogatories upon the Director in order to
determine the identity of LCDC correctional officers who are alleged to have
violated Plaintiff’s constitutional rights. The court ordered that all other named
Defendants, including Defendant Brad Johnson in his individual capacity and in his
official capacity as a member of the Jail Standards Board, would no longer be parties
to this action, and stated its intention that Defendant Brad Johnson, in his official
capacity as Director of LCDC, will also be dismissed from the action after answering
Plaintiff’s written interrogatories. (See Filing 17.)
Counsel for Defendant Johnson entered an appearance on July 14, 2021
(Filing 35), which means that Plaintiff is now permitted to “serve one set of written
interrogatories upon Defendant Johnson for the limited purpose of discovering the
identity of the correctional officers who are alleged in the Complaint (Filing 1) to
have violated Plaintiff’s due process rights by restricting Plaintiff to his cell and
denying him shower privileges for his refusals to permit his temperature to be taken.”
Memorandum and Order entered May 19, 2021 (Filing 17, p. 19). Service may be
accomplished by regular mail sent to the address provided in defense counsel’s
notice of appearance. See Fed. R. Civ. P. 5(b) & 33.
Now pending before the court are several motions filed by Plaintiff.
Filing 33 is a second request for reconsideration of the court’s Memorandum
and Order of May 19, 2021 (Filing 17). Plaintiff’s first request for reconsideration
(Filing 19) was denied by the court in a Memorandum and Order entered on June 8,
2021 (Filing 22), in which the court also denied Plaintiff’s motion to appeal the nonfinal order. In Filing 33, Plaintiff also requests reconsideration of the court’s denial
of certification for an interlocutory appeal. For the reasons stated in the June 8th
Memorandum and Order, both requests for reconsideration will be denied.
Plaintiff states in his brief in support of Filing 33 that he “has been informed
by correctional officers that Brad Johnson, Director, was directly responsible for the
directive that denied Plaintiff showers because he refused to have his temperature
taken by (named staff in disciplinary reports) ….” (Filing 34, p. 2.) Plaintiff did not
allege any such direct involvement by Director Johnson in his Complaint, but merely
claimed the Director was liable for the actions of subordinates.
The court’s order on initial review of Plaintiff’s Complaint authorized the
filing of an amended complaint against “one or more correctional officers” (Filing
17, p. 20), but the memorandum opinion also indicated that claims could be made
against “any superior officer who issued a directive that Plaintiff not be allowed to
shower” (Filing 17, p. 15.) Thus, if Plaintiff can meet the certification requirements
of Rule 11 of the Federal Rules of Civil Procedure,1 he may include Brad Johnson
“By presenting to the court a pleading, … an attorney or unrepresented party
certifies that to the best of the person’s knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances: (1) it is not being presented for
any improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; … (3) the factual contentions have evidentiary support
or, if specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; ….” Fed. R. Civ. P. 11(b).
as a defendant in an amended complaint. Plaintiff is reminded, however, that the
amended complaint will be reviewed by the court under 28 U.S.C. '' 1915(e)(2) and
1915A to determine whether it should be dismissed in whole or in part.
In Filing 31, Plaintiff requests leave to serve requests for production of
documents on Defendant, and in Filing 25, he requests leave to serve interrogatories
on LCDC’s Security Director. Both requests will be denied. The only discovery that
will be permitted at this time is service of one set of interrogatories on Defendant
Johnson for the limited purpose of discovering the identity of certain correctional
officers who can be named as defendants in an amended complaint. So that there
will be no misunderstanding, the court stresses that the interrogatories attached to
Filing 25 are not directed to Defendant Johnson and are not deemed to be served
upon him by reason of their filing.
In Filing 23, Plaintiff requests that written interrogatories directed to LCDC’s
Security Director be served by the United States Marshal, and that the Marshal’s
service fee be waived. This request will be denied as moot. To the extent this motion
may also be construed as requesting that authorized discovery papers be served on
Defendant Johnson by the Marshal, it is also denied. Plaintiff states he has no funds
but has not demonstrated that he is unable to serve discovery papers from the
Lancaster County jail as “legal mail” without prepayment of postage.
In Filing 27, Plaintiff requests that the court provide him with copies of the
Security Director’s answers to interrogatories. This request will also be denied as
moot. Furthermore, the discovery the court has authorized should be accomplished
without any court involvement. Director Johnson’s answers to interrogatories can be
mailed directly to Plaintiff. No discovery papers are to be filed with the court until
needed for trial, resolution of a motion, or on the court’s order. NECivR 5.4(a).
Finally, in Filing 29, Plaintiff renews his request for appointment of counsel.
There is no constitutional or statutory right to appointed counsel in a civil case. Ward
v. Smith, 721 F.3d 940, 942 (8th Cir. 2013) (per curiam). A district court “may
request an attorney to represent” an indigent civil litigant, 28 U.S.C. § 1915(e)(1),
but it has a “good deal of discretion” in deciding whether to do so, Chambers v.
Pennycook, 641 F.3d 898, 909 (8th Cir. 2011). “Relevant criteria for determining
whether counsel should be requested include the factual and legal complexity of the
case, the plaintiff's ability to investigate the facts and to present the claims, and the
presence or absence of conflicting testimony.” Recca v. Omaha Police Dep't, No.
20-2560, __ Fed. App'x __, 2021 WL 2285235, at *1 (8th Cir. 2021) (citing Davis
v. Scott, 94 F.3d 444, 447 (8th Cir. 1996)). First, this is not a complex case. Plaintiff
claims that unknown correctional officers violated his constitutional rights by not
allowing him to leave his cell to take a shower. Second, Plaintiff has demonstrated
through extensive filings that he has the ability to investigate the facts and to present
his claims, at least through the initial stage of the litigation. Third, this case is still at
the pleading stage, so there is no conflicting testimony. As a prisoner, Plaintiff
understandably faces challenges representing himself, but “most indigent prisoners
will face similar challenges.” See Recca, 2021 WL 2285235, at *2 (citing Patterson
v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018)). Having considered the factors outlined
above, Plaintiff’s renewed request for appointment of counsel will be denied without
prejudice to reassertion.
In requesting appointment of counsel, Plaintiff expresses concern that he will
not be able to ascertain the identity of the correctional officers in time to meet the
August 17, 2021 deadline for filing an amended complaint. This is a valid concern
since Defendant Johnson will not be required to respond to Plaintiff’s interrogatories
until 30 days after they are served upon him. See Fed. R. Civ. P. 33(b)(2). On its
own motion, therefore, the court will extend the filing deadline by 30 days. If
Plaintiff requires additional time, he may file a motion for another extension of time.
See Fed. R. Civ. P. 6(b).
IT IS THEREFORE ORDERED:
Plaintiff’s motion for reconsideration (Filing 33) is denied.
Plaintiff’s motion to serve interrogatories (Filing 25) is denied.
Plaintiff’s motion for production (Filing 31) is denied.
Plaintiff’s motion to waive service fee (Filing 23) is denied.
Plaintiff’s motion for answers to interrogatories (Filing 27) is denied.
Plaintiff’s motion to appoint counsel (Filing 29) is denied.
On the court’s own motion, Plaintiff shall have until September 16,
2021, to file an amended complaint in accordance with the court’s
Memorandum and Order of May 19, 2021. The Clerk of Court is
directed to reset the pro se case management deadline accordingly.
Dated this 15th day of July 2021.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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