Kosiski v. Frakes et al

Filing 33

MEMORANDUM AND ORDER - Plaintiff's motion for counsel (Filing No. 32 ) is denied without prejudice to reassertion. Plaintiff's motion for preliminary injunction (Filing No. 32 ) is denied. 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
EDWARD KOSISKI,
Plaintiff,

8:16CV345

vs.
PAUL RODRIGUEZ,

MEMORANDUM
AND ORDER

Defendant.
Before the court is Plaintiff’s motion for appointment of counsel or, in the
alternative, motion for preliminary injunction. (Filing No. 32.)
Plaintiff states that the Nebraska Department of Correctional Services
(“NDCS”) does not respect U.S. Supreme Court precedent on the constitutional
right of access to the courts. He alleges that “NDCS prohibits prisoners from
helping [him] with his legal matters and threatens to prosecute prisoners for
una[u]thorized practice of law by helping plaintiff.” He states that NDCS legal
aides are prohibited from giving “meaningful” legal assistance. He admits that a
“lay advocate” helped him write his current motion but did so under “the perils”
from NDCS because, otherwise, Plaintiff would have been unable to present a
“coherent” motion to the court due to his “learning, reading/comprehension
disability and [inability] to read, analyze and write legal materials.” Plaintiff seeks
the appointment of counsel or a preliminary injunction against NDCS “from
impeding [his] help from other prisoners and/or assigned legal aides,” so that he
can defend against Defendant’s future summary judgment motion which “will
require effective research and legal writing.”

Motion for Counsel
The court cannot routinely appoint counsel in civil cases. 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.
Motion for Preliminary Injunction
In Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981), the
court clarified the factors district courts should consider when determining whether
to grant a motion for preliminary injunctive relief:
(1) the threat of irreparable harm to the movant; (2) the state of
balance between this harm and the injury that granting the injunction
will inflict on other parties litigant; (3) the probability that movant
will succeed on the merits; and (4) the public interest.
Id. at 114. “No single factor in itself is dispositive; rather, each factor must be
considered to determine whether the balance of equities weighs toward granting
the injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.
1998). “At base, the question is whether the balance of equities so favors the
movant that justice requires the court to intervene to preserve the status quo until
the merits are determined. . . .” Dataphase, 640 F.2d at 113. The burden of proving
that a preliminary injunction should be issued rests entirely with the movant.
Modern Computer Systems v. Modern Banking Systems, 871 F.2d 734, 737 (8th
Cir. 1989) (en banc). In the prison context, a request for injunctive relief must

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always be viewed with great caution because “judicial restraint is especially called
for in dealing with the complex and intractable problems of prison administration.”
Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982).
Plaintiff alleges that NDCS has impaired his right to access to the courts
because it prohibits prisoners from helping him with his legal matters, allegedly by
threatening to prosecute prisoners for unauthorized practice of law and prohibiting
legal aides from giving “meaningful” legal assistance. Plaintiff fails to allege any
specific factual allegations to support these conclusory statements. Further Plaintiff
does not claim he is wholly illiterate, see Johnson v. Avery, 393 U.S. 483 (1969)
(invalidating regulation prohibiting prisoners from assisting each other because of
its effect on illiterate inmates), and he does not claim that NDCS declines to assign
him a legal aide, who NDCS has authorized to be a “jailhouse lawyer,” or any type
of other legal assistance. Prisoners do not have absolute right to a specific type of
legal assistance. See Bear v. Kautzky, 305 F.3d 802, 806 (8th Cir. 2002) (“[T]here
is no one prescribed method of ensuring inmate access to the courts. A prison
system may experiment with prison libraries, jailhouse lawyers, private lawyers on
contract with the prison, or some combination of these and other devices, so long
as there is no actual harm to the access rights of particular inmates.”); Ramos v.
Lamm, 639 F.2d 559, 583 (10th Cir. 1980) (citing Bounds v. Smith, 430 U.S. 817,
830-32 (1977)).
Prisoners must demonstrate actual injury for an access-to-the-courts claim.
Lewis v. Casey, 518 U.S. 343, 350-51 (1996). A prisoner must show that the prison
policies “hindered his effort to pursue a legal claim.” Id. at 351. Plaintiff has filed a
complaint, exhibits, an amended complaint, motions, and briefs in support of
motions. NDCS has, therefore, not hindered Plaintiff’s effort to pursue his legal
claims. See e.g., Hartsfield v. Nichols, 511 F.3d 826, 832 (8th Cir. 2008) (accessto-the-courts claim properly dismissed where prisoner failed to allege that he was
actually prevented from filing a complaint, or a filed complaint was dismissed for
lack of legal adequacy). Further, and perhaps most importantly, it is too speculative
to enjoin NDCS when Plaintiff has filed multiple pleadings to date and Defendant
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has not filed a summary judgment motion. See Goff v. Harper, 60 F.3d 518 (8th
Cir. 1995) (No showing of a threat of irreparable harm where the threat of harm is
too remote). In short, Plaintiff fails to make the requisite showing of a threat of
irreparable harm. His motion for preliminary injunction will be denied.
IT IS THEREFORE ORDERED that: Plaintiff’s motion for counsel (Filing
No. 32) is denied without prejudice to reassertion. Plaintiff’s motion for
preliminary injunction (Filing No. 32) is denied.
Dated this 31st day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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