Brown v. Department of Health and Human Services et al

Filing 28

MEMORANDUM AND ORDER that Plaintiff's Motion to Remove Defense Counsel (Filing No. 17 ) is denied. Plaintiff's Motion to Appoint Counsel (Filing No. 18 ) is denied without prejudice to reassertion. Plaintiff's Motion for Enlargemen t of Time (Filing No. 27 ) is denied in part and granted in part as follows: Plaintiff's request to extend the time in which she must answer discovery requests is denied, and Plaintiff's request for additional time within which to r espond to Defendants' Motions to Dismiss (Filing No. 23 ; Filing No. 25 ) is granted. Plaintiff may file her response to such motions on or before March 6, 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
CORNELIUS BROWN,
Plaintiff,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, COURTNEY
PHILIPS, Director, SHANNON
BLACK, Program Director, KYLE
MALONE, SOS Team Leader,
WILLIAM BECKER, Program
Therapist, CINDY DYKEMAN,
Program Manager, and LISA
LAURELL, Program Social Worker,
et. al.,
Defendants.

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8:16CV377

MEMORANDUM
AND ORDER

Plaintiff has filed a number of motions, all of which will be denied for the
reasons stated below.
Plaintiff has filed a Motion to Remove Defense Counsel (Filing No. 17) due to
a conflict of interest. Plaintiff argues that Assistant Attorney General Ryan C. Gilbride
should not represent the defendants in this case because Mr. Gilbride is also
representing the Norfolk Regional Center in another of Plaintiff’s cases. This motion
shall be denied, as it is the duty of the Office of the Attorney General to represent the
defendants.1

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The Nebraska Department of Justice has “general control and supervision of
all actions and legal proceedings in which the State of Nebraska may be a party or
may be interested, and shall have charge and control of all the legal business of all
departments and bureaus of the state . . . .” Neb. Rev. Stat. § 84-202 (Westlaw 2017).

Plaintiff’s Motion to Appoint Counsel (Filing No. 18) shall be denied without
prejudice because—as Plaintiff was recently advised in the court’s ruling on
Plaintiff’s last Motion to Appoint Counsel (Filing No. 11)—this case is still in its
early stages, and it is not clear that Plaintiff and the court will benefit from such
assistance at this point. 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”); 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)). Thus, Plaintiff’s request for the appointment
of counsel will be denied without prejudice to reassertion.
Finally, Plaintiff has filed a Motion for Enlargement of Time (Filing No. 27)
to answer discovery requests and to reply to Defendants’ motions. Plaintiff’s request
to extend the time in which she must answer discovery requests will be denied, as the
docket sheet does not indicate that Plaintiff has been served with any discovery
requests in this case. Plaintiff’s motion for additional time within which to respond

Further, “[t]he Attorney General is authorized to appear for the state and prosecute
and defend, in any court or before any officer, board or tribunal, any cause or matter,
civil or criminal, in which the state may be a party or interested.” Neb. Rev. Stat. §
84-203 (Westlaw 2017).
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to Defendants’ Motions to Dismiss (Filing No. 23; Filing No. 25) will be granted, and
Plaintiff may file her response to such motions on or before March 6, 2017.
IT IS ORDERED:
1.

Plaintiff’s Motion to Remove Defense Counsel (Filing No. 17) is denied;

2.
Plaintiff’s Motion to Appoint Counsel (Filing No. 18) is denied without
prejudice to reassertion; and
3.
Plaintiff’s Motion for Enlargement of Time (Filing No. 27) is denied in
part and granted in part as follows: Plaintiff’s request to extend the time in which she
must answer discovery requests is denied, and Plaintiff’s request for additional time
within which to respond to Defendants’ Motions to Dismiss (Filing No. 23; Filing No.
25) is granted. Plaintiff may file her response to such motions on or before March 6,
2017.
DATED this 9th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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