Johnson v. Douglas County Department of Corrections et al

Filing 10

ORDER - that Plaintiff's "Motion for Counsel and Motion for Order for Injunction to Use Law Library as Pro Se Litigant" (Filing No. 9 ) is denied in all respects, without prejudice. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VERNON R. JOHNSON,
Plaintiff,
v.
DOUGLAS COUNTY DEPARTMENT
OF CORRECTIONS, at al,
CORRECT CARE SOLUTIONS, and
DOCTOR ASH,
Defendants.

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8:17CV458

MEMORANDUM
AND ORDER

Plaintiff, Vernon Johnson, is a prisoner at the Douglas County Corrections Center
(“DCCC”). In a pro se Complaint filed on November 30, 2017 (Filing No. 1), Johnson
alleges Defendants were negligent in failing to provide him medical care, and he seeks relief
under the Nebraska Political Subdivisions Tort Claim Act.
In a Memorandum and Order entered on January 10, 2018 (Filing No. 8), the court
found on initial review that Johnson’s Complaint fails to show the court has subject matter
jurisdiction over this state-law negligence claim because the amount in controversy does not
appear to exceed $75,000 and diversity of citizenship may be lacking. On the court’s own
motion, Johnson was given 30 days in which to file an amended complaint.
The matter is now before the court on Johnson’s “Motion for Counsel and Motion for
Order for Injunction to Use Law Library as Pro Se Litigant,” which was filed on January 26,
2018 (Filing No. 9). The Motion will be denied in all respects, without prejudice.
I. Appointment of 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 “Motion for Counsel”
will be denied.
II. Access to Law Library
Paperwork attached to Johnson’s Motion indicates he is entitled to spend one hour per
week in the law library. His requests for additional time, which were submitted prior to the
court’s January 10, 2018 Memorandum and Order, were denied.
Liberally construing the Motion, it is claimed that limited library time is interfering
with Johnson’s access to the courts. To prove a violation of the right of meaningful access
to the courts, Johnson must establish that DCCC did not provide him with an opportunity to
litigate his claim in “a court of law, which resulted in actual injury, that is, the hindrance of
a nonfrivolous and arguably meritorious underlying legal claim.” Hartsfield v. Nichols, 511
F.3d 826, 831 (8th Cir. 2008) (citation omitted). “To prove actual injury, [a prisoner] must
‘demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.’” Id.
(quoting Lewis v. Casey, 518 U.S. 343, 353 (1996)).
Here, Johnson has not had a problem communicating with this court, nor has he
shown that his current library time is insufficient to present his legal claims. The court has
advised Johnson that his negligence claim cannot proceed here unless he is able to allege
certain jurisdictional facts. Accordingly, the “Motion for Order for Injunction to Use Law
Library as Pro Se Litigant” will be denied.
IT IS ORDERED that Plaintiff’s “Motion for Counsel and Motion for Order for
Injunction to Use Law Library as Pro Se Litigant” (Filing No. 9) is denied in all respects,
without prejudice.
DATED this 30th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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