Paulsen v. Foxall et al

Filing 38

MEMORANDUM AND ORDER that the Plaintiff's motion for appointment of counsel (Filing No. 35 ) is denied without prejudice. Any and all claims alleged against the Douglas County Department of Corrections are dismissed without prejudice. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD PAULSEN,
Plaintiff,
v.
BOBBY HYEK;
SARGENT BARBEE; and
DOUGLAS COUNTY
DEPARTMENT OF
CORRECTIONS,
Defendants.

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8:14CV336

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s renewed motion for appointment
of counsel (Filing No. 35). In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the
Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do not have
a constitutional or statutory right to appointed counsel.” Trial courts have “broad
discretion to decide whether both the plaintiff and the court will benefit from the
appointment of counsel, taking into account the factual and legal complexity of the
case, the presence or absence of conflicting testimony, and the plaintiff’s ability to
investigate the facts and present his claim.” Id. Having considered these factors, the
request for the appointment of counsel will be denied without prejudice to reassertion.
On its own motion, the court notes that in a Memorandum and Order entered
on January 16, 2016 (Filing No. 22), it neglected to dismiss claims alleged against the
Douglas County Department of Corrections, which Plaintiff named as a Defendant in
his Amended Complaint (Filing No. 21), although it was discussed that Plaintiff has
not alleged a municipal policy or custom caused him to be deprived of a constitutional
right. In any event, the Douglas County Department of Corrections is not a proper
Defendant. See Dan v. Douglas Cty. Dep’t of Corr., No. 8:06CV714, 2009 WL

483837, at *4 (D. Neb. Feb. 25, 2009) (the Department of Corrections and other units
within the DCCC and Douglas County lack the legal capacity to sue or be sued in their
own names).
Accordingly,
IT IS ORDERED:
1.

Plaintiff’s motion for appointment of counsel (Filing No. 35) is denied
without prejudice.

2.

Any and all claims alleged against the Douglas County Department of
Corrections are dismissed without prejudice.

DATED this 12th day of September, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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