Brown v. Houston et al

Filing 60

MEMORANDUM AND ORDER that Plaintiff's Motion for Partial Summary Judgment (Filing No. 54 ) is denied. Plaintiffs Motions for Appointment of Counsel (Filing No. 56 ; Filing No. 58 ) are denied without prejudice to reassertion. Plaintiff 9;s Motion to Extend Deadline for Filing Interrogatories (Filing No. 59 ) is granted, and paragraph (1) of the Order Setting Schedule for Progressionof Case (Filing No. 53 ) is amended to provide that the parties may serve interrogatories on or before September 15, 2017. 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
MARVIN L. BROWN JR.,
Plaintiff,
v.
ROBERT HOUSTON, et al.,
Defendants.

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8:16CV217

MEMORANDUM
AND ORDER

Pending before the court are Plaintiff’s Motion for Partial Summary Judgment
(Filing No. 54), Motions for Appointment of Counsel (Filing No. 56; Filing No. 58),
and Motion to Extend Deadline for Filing Interrogatories to Defendants (Filing No.
59).
Motion for Partial Summary Judgment
Plaintiff’s Motion for Partial Summary Judgment (Filing No. 54) will be denied
because Plaintiff (1) has failed to offer any evidence showing that he is entitled to
judgment as a matter of law, Fed. R. Civ. P. 56; (2) has failed to support his motion
with a separate statement of material facts to which he contends there is no genuine
issue and that contains pinpoint references to affidavits, pleadings, discovery
responses, deposition testimony, or other materials, NECivR 56.1(a) (failure to submit
statement of facts and citations to record supporting factual allegations may be
grounds to deny the motion); and (3) has filed a brief (Filing No. 55) in support of his
Motion for Partial Summary Judgment that vaguely discusses the court’s previous
orders and asserts arguments against each of the affirmative defenses listed in
Defendants’ Answer, but does not discuss how he is entitled to judgment as a matter
of law, NECivR 7.1(a)(1)(A) (“The brief must concisely state the reasons for the

motion and cite to supporting authority.”); NEGenR 1.3(g) (“parties who proceed pro
se are bound by and must comply with all local and federal procedural rules”).
Motions for Appointment of Counsel
This case is still in its early stages, and it is not clear that Plaintiff and the court
will benefit from the appointment of counsel at this point. The facts underlying
Plaintiff’s claims are not complex, nor are the legal arguments regarding those claims.
Further, Plaintiff has filed several pleadings, motions, and briefs with the court,
indicating his basic ability to present his claims. Thus, Plaintiff’s requests for the
appointment of counsel will be denied without prejudice to reassertion. 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”);
Ward v. Smith, 721 F.3d 940, 943 (8th Cir. 2013) (district court did not abuse its
“considerable discretion” in denying inmate’s motion for appointment of counsel in
§ 1983 action against correctional officers and nurse for excessive force and deliberate
indifference to serious medical need; neither underlying facts nor legal arguments
were so complex as to require appointment of counsel, and defendant’s well-written
filings with court indicated his basic ability to state claims); 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)).

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Motion to Extend Deadline for Filing Interrogatories
Due to a variety of institutional logistical issues that have allegedly affected
Plaintiff’s ability to access the prison law library, Plaintiff requests an undefined
extension of the July 31, 2017, deadline to serve interrogatories (Filing No. 53).
Although Plaintiff’s motion was filed almost a month after the deadline in which to
serve interrogatories, the motion will be granted upon Plaintiff’s showing of excusable
neglect. Fed. R. Civ. P. 6(b)(1)(B).
IT IS ORDERED:
1.
denied;

Plaintiff’s Motion for Partial Summary Judgment (Filing No. 54) is

2.
Plaintiff’s Motions for Appointment of Counsel (Filing No. 56; Filing
No. 58) are denied without prejudice to reassertion; and
3.
Plaintiff’s Motion to Extend Deadline for Filing Interrogatories (Filing
No. 59) is granted, and paragraph (1) of the Order Setting Schedule for Progression
of Case (Filing No. 53) is amended to provide that the parties may serve
interrogatories on or before September 15, 2017.
DATED this 28th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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