Owen v. Young et al

Filing 28

Memorandum Opinion and ORDER denying 19 Motion to Strike ; denying 21 Motion for Preliminary Injunction; adopting 23 Report and Recommendation; overruling 26 Objection to Report and Recommendation.; denying 27 Motion to Appoint Counsel. Signed by U.S. District Judge Karen E. Schreier on 3/10/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LANCE G. OWEN,

4:15-CV-04087-KES
Plaintiff,

vs.
DARIN YOUNG, TROY PONTO, JAN
WAGNER, ALLCOCK (AW at SDSP),
Respondent.

MEMORANDUM OPINION AND
ORDER ADOPTING THE REPORT
AND RECOMMENDATION, DENYING
MOTION FOR PRELIMINARY
INJUNCTION, DENYING MOTION
TO STRIKE, AND DENYING MOTION
TO APPOINT COUNSEL

Plaintiff, Lance G. Owen, filed this lawsuit pursuant to 42 U.S.C. § 1983,
naming Darin Young, Troy Ponto, Jan Wagner, and “Allcock (AW at SDSP)” as
defendants. Docket 1. Owen now moves for a preliminary injunction. Docket
21. This matter was referred to Magistrate Judge Veronica L. Duffy to handle
pretrial matters under 28 U.S.C. § 636(b)(1) and this court’s standing order of
October 16, 2014. Magistrate Judge Duffy recommends his motion for
preliminary injunction be denied, Docket 23, and Owen objects. Docket 26. For
the reasons stated below, the report and recommendation is adopted, Owen’s
motion for preliminary injunction is denied, defendants’ motion to strike is
denied, and Owen’s motion to appoint counsel is denied.
FACTUAL BACKGROUND
Owen filed a complaint on March 19, 2015, alleging defendants denied
him equal protection because, although he is a “lifer” at the South Dakota

State Penitentiary, he was not given permission to transfer funds from his
“frozen” prison account to (1) his other prison sub-accounts; or (2) outside the
prison to his relatives. Docket 1. Magistrate Judge Duffy recommends that his
complaint be dismissed for failure to state a claim upon which relief may be
granted. Docket 8.
On June 11, 2015, Owen filed a “Supplement,” which the court
construed as an amended complaint. Docket 9. In this amended complaint,
Owen alleged that defendants violated his constitutional rights by increasing
his debt accrued under the Prison Litigation Reform Act. Id. The amended
complaint was served, and defendants answered. Docket 16. Owen filed an
objection to defendants’ answer, Docket 18, and defendants moved to strike
this objection. Docket 19.
On February 10, 2016, Owen filed a motion for preliminary injunction.
Docket 21. In this motion, he raises new claims that defendants are retaliating
against him and sexually discriminating against him because of his claims
concerning his prison bank account. Id.; Docket 26. The motion was referred to
Magistrate Judge Duffy. She recommends that it be denied because the issues
Owen raises in the motion for preliminary injunction bear no relation to the
issues in his amended complaint. Docket 23 at 3.
Owen objects to this recommendation. Docket 26. He does not directly
respond to Magistrate Judge Duffy’s findings. He does, however, argue that he
should be able to amend his complaint, that defendants are punishing him in
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order to avoid litigation in the matter, and that he is not attempting to change
the factual basis of his complaint but point out that defendants have a “conflict
of interest.” Id. at 4.
LEGAL STANDARD
Review of a magistrate judge’s report and recommendation is governed by
28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Under 28
U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely
made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly
objected to”).
DISCUSSION
I.

Preliminary Injunction
“A plaintiff seeking a preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008); see also Dataphase Sys., Inc. v. C.L. Sys.,
Inc., 640 F.2d 109, 114 (8th Cir. 1981).
The report and recommendation explains that “implicit in the above
definitions and law—explicit in the first Winter factor—is the idea that a court
ruling on a motion for preliminary injunction is giving an early ruling on the
merits of the case.” Docket 23 at 3. Because “Owen’s motion for preliminary
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injunction has nothing to do with the merits of his amended complaint”
Magistrate Judge Duffy recommends denial of this motion. Id. The court
agrees.
Owen first argues that he should not be required to provide security or
collateral to pay defendants’ costs and damages in the event that the injunction
is wrongfully issued. Docket 26 at 3-4. This is not the reason Magistrate Judge
Duffy recommends denial. Therefore, this objection is overruled.
Second, Owen argues that he should be allowed to amend his complaint
in order to rectify issues in his complaint. Id. at 4. Owen has already amended
his complaint. See Docket 9. The preliminary injunction neither attempts to
amend his complaint nor concerns claims raised in his complaint. Therefore,
this objection is overruled.
Third, Owen argues that he is not changing the factual basis to his
complaint but merely pointing out that defendants may have a “conflict of
interest” issue arising from his punishment. Id. The court construes this as an
attempt to raise the claims that Owen was retaliated against for his current
lawsuit, is being denied access to the law library and legal materials, and
discriminatorily punished based on his sex. These allegations are not relevant
to his case and would be more appropriately raised in a separate § 1983 action.
Therefore, this objection is overruled.
II.

Motion to Strike
Defendants move to strike Owen’s objections to their answer. Docket 19.
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They argue that there is no authority for Owen to file objections to an answer
because the court has not ordered a reply, and Owen’s objections are not
properly before the court. Docket 20 at 1. While the court agrees that Owen’s
objections are not properly before the court, it is more appropriate to disregard,
rather than to strike, the objections.
III.

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 court considers the complexity of the case, the ability of the indigent
litigant to investigate the facts, the existence of conflicting testimony, and the
litigant’s ability to present his claim. Id. The facts of Owen’s claims are not
complex; at this stage, they concern math more than law. Owen appears able
to adequately present his claims at this time, and his motion to appoint
counsel is therefore denied.
The court is aware that the situation may change as litigation
progresses. This court will “continue to be alert to the possibility that, because
of procedural complexities or other reasons, later developments in the case
may show either that counsel should be appointed, or that strict procedural
requirements should, in fairness, be relaxed to some degree.” Williams v.
Carter, 10 F.3d 563, 567 (8th Cir. 1993).
Therefore, it is ORDERED
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1. Magistrate Judge Duffy’s report and recommendation (Docket 23) is
adopted.
2. Owen’s objections to the report and recommendation (Docket 26) are
overruled, and his motion for preliminary injunction (Docket 21) is
denied.
3. Defendants’ motion to strike (Docket 19) is denied.
4. Owen’s motion to appoint counsel (Docket 27) is denied.
Dated March 10, 2016.
BY THE COURT:

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

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