Blackcloud v. Kaemingk et al

Filing 26

ORDER denying 10 Motion for additional funds; denying 16 Motion to Appoint Counsel; denying 22 Motion to Appoint Counsel. Signed by Chief Judge Jeffrey L. Viken on 1/16/13. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
EDWARD P. BLACKCLOUD,
Plaintiff,
vs.
DENNIS KAEMINGK, Secretary of
Corrections, South Dakota
Department of Corrections, in his
official capacity; DOUG WEBER,
Warden, South Dakota State
Penitentiary, in his official capacity;
BOB DOOLEY, Associate Warden,
Mike Durfee State Prison, in his
official capacity; JEFF NEILL, Case
Manager, South Dakota State
Penitentiary/Jameson Prison, in his
individual and official capacities;
LT. SOMMERS, Special Security,
South Dakota State Penitentiary, in
his individual and official
capacities; SGT. CHRISTENSEN,
(DHO) Sargent, Mike Durfee State
Prison, in his individual and official
capacities; SGT. WICKETT, (DHO)
Sgt., Mike Durfee State Prison, in
his individual and official
capacities; LT. SESTAK, Officer in
Charge, Mike Durfee State Prison,
in his individual and official
capacities; TAMMY DOYLE, Unit
Manager, Mike Durfee State Prison,
in her individual and official
capacities; KIM LIPPENCOTT, Unit
Case Worker, Mike Durfee State
Prison, in her individual
and official capacities;

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CIV. 12-4168-JLV

ORDER

TAMMY DEJONG, Unit
Coordinator, Mike Durfee State
Prison, in her individual and
official capacities;
KEITH TOMKINS, Staff
Representative, Mike Durfee
State Prison, in his individual
and official capacities; RANDY
STEVENS, Property
Officer/Mailroom Officer, Mike
Durfee State Prison, in his
individual and official capacities,
Defendants.

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Plaintiff, Edward P. Blackcloud, appearing pro se, moves the court for
appointment of counsel and an order directing the Department of
Corrections to deposit addition funds into his inmate trust account.
(Dockets 10, 16, 22).
There is no constitutional or statutory right to court-appointed
counsel in a civil case. Phillips v. Jasper County Jail, 437 F.3d 791, 794
(8th Cir. 2006). Rather, the court in its discretion may appoint counsel to
represent an indigent prisoner. Id. (citing 28 U.S.C. § 1915(e). “The
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.” Id. Mr. Blackcloud appears capable of articulating
and presenting his claims. Further, the case does not present particularly
complex factual or legal issues, and the court is familiar with the applicable
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legal standards. The court finds appointment of counsel unnecessary in
this case.
Mr. Blackcloud also requests an order directing the Department of
Corrections to deposit additional funds into his prisoner trust account for
purposes of sending legal mail. (Docket 10). Mr. Blackcloud asserts being
given more than the $10 per month allowance for legal mail will permit him
to “meet any and all court deadlines.” Id.
The Supreme Court requires states “to shoulder affirmative
obligations to assure all prisoners meaningful access to the courts.”
Bounds v. Smith, 430 U.S. 817, 824 (1977). “It is indisputable that indigent
inmates must be provided at state expense with paper and pen to draft legal
documents with notarial services to authenticate them, and with stamps to
mail them.” Id. However, inmates have no constitutional right to unlimited
free postage. See Smith v. Erickson, 884 F.2d 1108, 1111 (8th Cir. 1989);
Chandler v. Coughlin, 763 F.2d 110, 114 (2d Cir. 1985); Hoppins v. Wallace,
751 F.2d 1161, 1162 (11th Cir. 1985). Courts have held that a prison’s
reasonable limitation on postage expense for inmates furthers a substantial
and legitimate penological interest; namely, managing limited prison
resources. Turner v. Safley, 482 U.S. 78, 89 (1987); Bell-Bey v. Williams, 87
F.3d 832, 836-38 (6th Cir. 1996); Smith, 884 F.2d at 1110.
Accordingly, it is hereby
ORDERED that Mr. Blackcloud’s motions for appointment of counsel
(Dockets 16 & 22) are denied.
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IT IS FURTHER ORDERED that Mr. Blackcloud’s motion for
additional funds (Docket 10) is denied.
Dated January 16, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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