Bell v. Voight et al

Filing 25

ORDER granting in part and denying in part 16 Motion for Copies; denying 17 Motion to Appoint Counsel ; denying 19 Motion for Pretrial Conference. Signed by US Magistrate Judge Veronica L. Duffy on 11/04/14. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHANE DOUGLAS BELL,

4:14-CV-04111-LLP

Plaintiff,
vs.
WILLIAM VOIGHT, CORRECTIONS
OFFICER AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; JEREMY
WENDLING, CORRECTIONS OFFICER
SGT. AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; SAMUEL YOST,
CORRECTIONS OFFICER, CPL. AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; JESSICA COOK,
UNIT MANAGER AT SOUTH DAKOTA
STATE PENITENTIARY, INDIVIDUAL
AND OFFICIAL CAPACITY; JOHN DOE
#1, CORRECTIONS OFFICER AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; DARIN YOUNG,
WARDEN AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; AND JOHN DOE
#2, CORRECTIONS OFFICER AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY;

ORDER ON PLAINTIFF’S MOTIONS:
MOTION FOR COPIES (DOC. 16)
MOTION FOR COUNSEL (DOC. 17)
MOTION FOR PRETRIAL
CONFERENCE (DOC. 19)

Defendants.

INTRODUCTION
Plaintiff, Shane D. Bell (“Bell”) filed a pro se lawsuit pursuant to 42 U.S.C.
§ 1983. He has been granted in forma pauperis status and has, as required,
paid the initial partial filing fee. Judge Simko determined the allegations in

Bell’s Complaint were sufficient to survive screening pursuant to 28 U.S.C.
§ 1915.
Bell alleges the defendants have violated his Constitutional rights in
various ways. In Count I, he alleges the defendants violated the Eighth
Amendment prohibition against cruel and unusual punishment. Specifically,
Bell alleges he was assaulted by a fellow inmate and that, although he
eventually had surgery for his injuries, the defendants ignored his serious
medical need for eight days before he received treatment.
In Count II, Bell alleges another violation of the Eighth Amendment
prohibition against cruel and unusual punishment. Specifically, he alleges the
defendants retaliated against him when they subjected him to chain restraints
while in the infirmary and did not allow him to use the toilet for long periods of
time, causing him pain and sometimes causing him to soil himself. He also
alleges the defendants took and read his legal journal.
PENDING MOTIONS
A.

Motion for Copies (Doc. 16)
On October 9, 2014, Bell wrote nearly identical letters to both Judge

Piersol and Judge Simko. See Doc. 16 and 18. The letter to Judge Piersol was
docketed as a motion for copies. The gist of both letters is Bell’s plea for the
court’s assistance in obtaining photocopy privileges from prison administration
so he may comply with the requirement, contained in this Court’s Order for
Service, that he “serve upon defendants . . . or . . .upon their attorney . . . a
copy of every further pleading or other document submitted for consideration
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by the Court.” Bell asserts he is not being allowed to make photocopies, so he
cannot properly proceed with his lawsuit. He states “prison officials are trying
to manipulate this case and your court by hindering my ability to file
documents with the courts.” Since he filed his motion for copies, however, Bell
has filed several other motions or documents which include certificates of
service indicating he did send copies to opposing counsel. See Doc. 17, 19 and
20. Bell’s motion for copies will be granted in part and denied in part pending
an explanation by defendant Young. Young shall file an Affidavit responding to
Bell’s assertion within 30 days of the filing of this Order. Young’s Affidavit
shall explain the current prison policy at the SDSP regarding how many legal
copies (excluding case law) are allowed to Bell per month, the procedure Bell
should follow for requesting legal copies, which prison personnel are
responsible for making legal copies, how many “kites” Bell has filed requesting
legal copies since the inception of this pending lawsuit (Civ. 14-4111, United
States District Court, District of South Dakota, Southern Division) and how
many legal copies have been provided to Bell since the inception of this
pending lawsuit.
B.

Motion For Counsel (Doc. 17)
Next, Bell moves for appointment of Counsel (Doc. 17). "Indigent civil

litigants do not have a constitutional or statutory right to appointed counsel."
Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (citation omitted). “Rather,
when an indigent prisoner has pleaded a nonfrivolous cause of action, a court
‘may’ appoint counsel. See 28 U.S.C. § 1915(e).” Phillips v. Jasper County Jail,
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437 F.3d 791, 794 (8th Cir. 2006) (citations omitted, emphasis in original).
The factors relevant to evaluating a request for appointment of counsel include
"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." Davis v. Scott, 94 F.3d 444, 447
(8th Cir. 1996).
This case is not factually complex. Bell alleges violations of the Eighth
Amendment because he was assaulted and because his injuries went untreated
for eight days. He also alleges retaliation because prison officials chained him
to his bed in the infirmary and would not allow him to use the bathroom.
This case is not legally complex. The law regarding Bell’s Eighth
Amendment claim is well-settled and requires that Bell "prove that he suffered
from one or more objectively serious medical needs, and that prison officials
actually knew of but deliberately disregarded those needs." Roberson v.
Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999). A serious medical need is "one
that has been diagnosed by a physician as requiring treatment, or one that is
so obvious that even a layperson would easily recognize the necessity for a
doctor's attention." Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)
(quotation marks and citation omitted). The law further provides that
"[d]eliberate indifference may be demonstrated by prison guards who
intentionally interfere with prescribed treatment, or by prison doctors who fail
to respond to prisoner's serious medical needs. Mere negligence or medical
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malpractice, however, are insufficient to rise to a constitutional violation."
Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (citing Estelle v.
Gamble, 429 U.S. 97, 104-06 (1976)).
Like all individuals untrained in the law, Bell may benefit from the
assistance of counsel, but the court does not find it necessary to appoint
counsel in this matter. The court would not benefit from the assistance of
counsel at this point in the proceedings. Bell, although incarcerated, is able to
investigate the facts of his claim. It is not clear at the present time whether
there will be conflicting testimony in this case. The legal issues involved do not
appear to be complex at this point in the proceedings. Bell’s motion for
counsel will be denied without prejudice.
C.

Motion For Pretrial Conference (Doc. 19)
Finally, Bell moves for a pretrial conference. In his motion, Bell proposes

a pretrial conference to: (1) discuss the nature and basis of the parties’ claims
and defenses and the possibilities for prompt settlement or resolution of the
case; (2) the make or arrange for initial disclosures required under Rule
26(a)(1); and (3) to develop a proposed discovery plan.
It appears the conference Bell requests is the parties’ Rule 26(f) meeting.
Pursuant to FED. R. CIV. P. 26(a)(1)(B)(iv) and South Dakota Local Rule 16.1
(11), pretrial conference procedures are inapplicable to actions brought without
an attorney by persons in the custody of the United States, a state or a state
subdivision. Bell’s Motion for a pretrial conference, therefore, will be denied.

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CONCLUSION and ORDER
For the reasons more fully explained above, IT IS ORDERED:
(1) Bell’s motion for copies is (Doc. 16) GRANTED in part. Defendant
Young, is ORDERED to file, within 30 days of this Order, an Affidavit
addressing the following issues:
(A) the current prison policy at the SDSP regarding how many
legal copies (excluding case law) are allowed to Bell per month;
(B) the procedure Bell should follow for requesting legal copies;
(C) which prison personnel are responsible for making legal copies;
(D) how many “kites” Bell has filed requesting legal copies since the
inception of this pending lawsuit (Civ. 14-4111, United States
District Court, District of South Dakota, Southern Division); and
(E) how many legal copies have been provided to Bell since the
inception of this pending lawsuit.
The balance of Bell’s motion for copies is DENIED without prejudice.
(2) Bell’s motion for appointment of counsel (Doc. 17) is DENIED without
prejudice.
(3) Bell’s motion for pretrial conference (Doc. 19) is DENIED.
DATED this 4th day of November, 2014.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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