Good Voice Elk v. Perrett et al

Filing 31

ORDER denying 12 Motion for copies of health records; denying 24 Motion to Appoint Counsel ; granting 25 Motion to Amend/Correct complaint. Amended complaint due 5/13/2013. Defendants' deadline to file motion addressing qualified immunity is 6/13/2013. Signed by U.S. District Judge Karen E. Schreier on 4/18/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BYRON GOOD VOICE ELK,
Plaintiff,
vs.
CORRECTIONAL OFFICER PERRETT;
CORRECTIONAL OFFICER
NEAROVIC;
LIEUTENANT WENDLING;
MEDICAL STAFF KITTY;
HEALTH SERVICE; and
MENTAL HEALTH, all in their
individual and official capacities,
Defendants.

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Civ. 12-4198-KES

ORDER DENYING MOTION FOR
COPIES OF MENTAL HEALTH
RECORDS, DENYING MOTION TO
APPOINT COUNSEL, GRANTING
MOTION TO AMEND COMPLAINT,
AND GRANTING MOTION TO STAY
DISCOVERY

Plaintiff, Byron Good Voice Elk, moves this court for copies of mental
health records (Docket 12), for appointment of counsel (Docket 24), and for
leave to file an amended complaint (Docket 25). Good Voice Elk commenced this
action on November 16, 2012, alleging excessive force, retaliation, failure to
protect, deliberate indifference to serious medical needs, and unconstitutional
conditions of confinement. Docket 1. On November 28, 2012, Good Voice Elk
requested leave to amend his complaint to add a defendant. Docket 7. The court
granted such motion and allowed Good Voice Elk until January 4, 2013, to file an
amended complaint. Docket 11. Good Voice Elk, however, did not file an amended
complaint within the requisite time period, and the court screened his original
complaint on January 15, 2013. Docket 13.

Summons issued as to all named defendants on February 7, 2013. Docket
15. Defendants answered on March 4, 2013, denying Good Voice Elk’s claims and
asserting various affirmative defenses. Docket 21. At that time, defendants also
submitted a response in opposition to Good Voice Elk’s request for mental health
records and included therein a motion to stay discovery. Docket 22. On March 29,
2012, Good Voice Elk again requested leave to file an amended complaint. Docket
25.
DISCUSSION
I.

Motion for Copies of Mental Health Records.
Good Voice Elk requests a court order requiring Health Services to release

copies of his mental health records. Good Voice Elk, however, has not provided
sufficient information for the court to determine (1) whether such copies are being
withheld from him, and (2) whether such copies are relevant to the claims before
this court. The motion for copies of mental health records (Docket 12) is therefore
denied at this time.
II.

Motion to Appoint Counsel.
“A pro se litigant has no statutory or constitutional right to have counsel

appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir.
1998). In determining whether to appoint counsel to a pro se litigant’s civil
case, the district court considers the complexity of the case, the ability of the
indigent litigant to investigate the facts, the existence of conflicting testimony,
and the indigent's ability to present his claim. Id. In this case, the facts of Good
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Voice Elk’s remaining claims are not complex. Good Voice Elk appears able to
adequately present the majority of his § 1983 claims at this time, and his
motion to appoint counsel (Docket 24) is therefore denied.
III.

Motion to Amend the Complaint.
A motion for leave to amend is committed to the sound discretion of the

district court. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)
(citations omitted). “A party may amend its pleading once as a matter of course
within . . . 21 days after serving it.” Fed. R. Civ. P. 15(a)(1)(A). “In all other cases,
a party may amend its pleading only with the opposing party’s written consent or
the court’s leave.” Fed. R. Civ. P. 15(a)(2). Although Federal Rule of Civil
Procedure 15(a) dictates that “[t]he court should freely give leave when justice so
requires,” the court may deny such requests for “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis,
371 U.S. 178, 182 (1962).
Here, 21 days have passed between the date on which defendants were
served with this action and the date on which Good Voice Elk filed the instant
motion to amend. Because defendants have failed to demonstrate that additional
amendments would cause undue prejudice on opposing parties, the court grants
Good Voice Elk’s motion to amend his complaint. See Buder v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 644 F.2d 690, 694 (8th Cir. 1981) (“Delay alone is
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an insufficient justification for denying a motion to amend; prejudice to the
nonmovant must also be shown.”). Good Voice Elk must submit an amended
complaint on or before May 13, 2013.
IV.

Motion to Stay Discovery.
Defendants assert that Good Voice Elk’s claims are subject to

defendants’ qualified immunity defense (Docket 22), which defendants
affirmatively alleged in their answer (Docket 21). The doctrine of qualified
immunity protects prison officials from litigation itself, not merely liability.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Consequently, both the Supreme
Court and the Eighth Circuit have “ ‘repeatedly . . . stressed the importance of
resolving immunity questions at the earliest possible stage in litigation.’ ” O’Neil
v. City of Iowa City, 496 F.3d 915, 917 (8th Cir. 2007) (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)). In light of defendants’ upcoming motion to resolve
the issue of qualified immunity, therefore, the motion to stay discovery is
granted. Defendants must submit a motion addressing the issue of qualified
immunity on or before June 13, 2013. Accordingly, it is
ORDERED that Good Voice Elk’s motion for copies of mental health
records (Docket 12) is denied.
IT IS FURTHER ORDERED that Good Voice Elk’s motion for appointment
of counsel (Docket 24) is denied.

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IT IS FURTHER ORDERED that Good Voice Elk’s motion to amend the
complaint (Docket 25) is granted. Good Voice Elk’s deadline to file an amended
complaint is by May 13, 2013.
IT IS FURTHER ORDERED that defendants’ motion to stay discovery
(Docket 22) is granted. Defendants’ deadline to file a motion addressing the
issue of qualified immunity is by June 13, 2013.
Dated April 17, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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