Cotton v. Douglas County Department of Corrections et al

Filing 26

ORDER - The Motion to Withdraw as Counsel for Plaintiff Cotton (Filing No. 25 ) is granted. The Clerk of Court shall terminate Travis J. Penn as counsel for the plaintiff and stop all notification to him. The plaintiff is considered proceeding pr o se and counsel for any defendant may communicate with him directly. The plaintiff's request for appointment of counsel (Filing No. 24 -1) is denied. The plaintiff shall have until November 23, 2016, to file an amended complaint in accord ance with the courts October 5, 2016, Order. The Clerk of Court shall provide a copy of the court's October 5, 2016, Order, with this Order to the plaintiff at his last known address. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party with documents as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JAMES COTTON,
Plaintiff,

8:16CV153

vs.
ORDER
DOUGLAS COUNTY, NEBRASKA,
and JACQUELINE ESCH, M.D.,
in her official capacity as a medical
doctor of Douglas County
Corrections,
Defendants.
This matter is before the court on the Motion to Withdraw as Counsel for Plaintiff
Cotton (Filing No. 25) and the plaintiff’s October 14, 2016, correspondence (Filing No.
24-1). Travis J. Penn seeks leave to withdraw as counsel for the plaintiff due to a
breakdown in communication.

See Filing No. 25.

The plaintiff’s correspondence

indicates the plaintiff’s agreement and the plaintiff states he no longer wants Mr. Penn
to represent him in this matter. See Filing No. 24-1. Accordingly, the court will grant
Mr. Penn leave to withdraw.
The plaintiff also indicates he is looking for new counsel, but he is having
difficulty due to his incarceration and lack of funds. See Filing No. 24-1. The plaintiff
asks if the court may appoint counsel.

Id.

AIndigent 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.@ Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (quotation
and citation omitted). The plaintiff was previously granted in forma pauperis status.
See Filing No. 4.

Nevertheless, the plaintiff fails to provide justification for the

appointment of counsel. On October 5, 2016, the court granted one defendant’s motion
to dismiss, but allowed the plaintiff an opportunity to amend his complaint. See Filing
No. 23. The plaintiff provided details about his alleged injuries, claims, and intentions
for this lawsuit in his correspondence.

See Filing No. 24-1.

The court finds

appointment of counsel is not necessary at this time to enable the plaintiff to pursue his

interests in this lawsuit. The plaintiff will proceed pro se unless he retains legal counsel
or counsel is appointed by the court at a later time. Upon consideration,

IT IS ORDERED:
1.

The Motion to Withdraw as Counsel for Plaintiff Cotton (Filing No. 25) is

granted. The Clerk of Court shall terminate Travis J. Penn as counsel for the plaintiff
and stop all notification to him.

The plaintiff is considered proceeding pro se and

counsel for any defendant may communicate with him directly.
2.

The plaintiff’s request for appointment of counsel (Filing No. 24-1) is

denied.
3.

The plaintiff shall have until November 23, 2016, to file an amended

complaint in accordance with the court’s October 5, 2016, Order.
4.

The Clerk of Court shall provide a copy of the court’s October 5, 2016,

Order, with this Order to the plaintiff at his last known address.
Dated this 24th day of October, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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