Shaw v. Young et al

Filing 102

ORDER denying plaintiff James Elmer Shaw's 76 Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 06/16/17. (Duffy, Veronica) (Main Document 102 replaced on 6/16/2017) (DJP).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES ELMER SHAW,

4:15-CV-04121-KES

Plaintiff,

ORDER

vs.
TROY PONTO, ASSOCIATE WARDEN,
INDIVIDUAL AND OFFICIAL
CAPACITY; AL MADSON, UNIT
MANAGER, INDIVIDUAL AND
OFFICIAL CAPACITY; SAM BADURE,
UNIT MANAGER, INDIVIDUAL AND
OFFICIAL CAPACITY; DERICK
BIEBER, UNIT MANAGER,
INDIVIDUAL AND OFFICIAL
CAPACITY; JACOB GLASIER, UNIT
COORDINATOR, INDIVIDUAL AND
OFFICIAL CAPACITY; DR. MARY
CARPENTER, M.D. (HEALTH
SERVICES), INDIVIDUAL AND
OFFICIAL CAPACITY; DR. EUGENE
REGIER, MD, INDIVIDUAL AND
OFFICIAL CAPACITY; HEATHER
BOWERS, RN (HEATH SERVICES),
INDIVIDUAL AND OFFICIAL
CAPACITY; AUDREY SHEDD, HEAD
REGISTERED NURSE, INDIVIDUAL
AND OFFICIAL CAPACITY;
Defendants.

THIRD MOTION FOR APPOINTMENT
OF COUNSEL [DOCKET 77]

INTRODUCTION
This matter is before the court on plaintiff James Elmer Shaw’s pro se
fourth amended complaint pursuant to 42 U.S.C. § 1983, filed September 12,
2016. See Docket No. 41.

The pending matter was referred to this magistrate

judge pursuant to 28 U.S.C. ' 636(b)(1)(A) and (B) and the April 13, 2017, order of

the Honorable Karen E. Schreier, district judge. The defendants have taken no
position on Mr. Shaw’s third motion for appointment of counsel. Docket 82, p. 12.
DISCUSSION

Mr. Shaw has twice before moved for appointment of counsel. This court
denied his first motion. See Docket 12. Thereafter, Mr. Shaw moved to amend
his complaint and the district court granted the motion to amend. Docket 19,
24. Mr. Shaw amended his complaint (Docket 25) and thereafter, the district
court sua sponte appointed counsel. Docket 27. Counsel filed a third
amended complaint (Docket 28) before Mr. Shaw’s second amended complaint
was screened or served upon the defendants. Shortly after the summonses
were issued, appointed counsel moved to withdraw, and Mr. Shaw filed a pro se
fourth amended complaint.

The defendants requested and were granted an

extension of time to file their answers. They indicated in their ECF filing that
the answers they filed were to Mr. Shaw’s pro se fourth amended complaint.
See Docket 42.
In this, his third motion for appointment of counsel, Mr. Shaw indicates
he was dissatisfied with his appointed counsel and that he communicated
those reasons for his dissatisfaction with her. Mr. Shaw reiterates in this
motion the reasons he believes his appointed counsel was incompetent and
why he believes the fourth amended complaint, drafted by him with the
assistance of his jailhouse lawyer, was far superior to the complaint drafted by
his appointed counsel.

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After the defendants answered Mr. Shaw’s fourth amended complaint,
Mr. Shaw again requested appointed counsel. Docket 48. The district court,
however, denied the motion (Docket 62), finding that upon further review,
Mr. Shaw had demonstrated an ability to ably represent himself. This court
agrees.
"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). 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).
Mr. Shaw asserts that because this is a medical case, it is too complex
for him to handle on a pro se basis. At this stage of the proceedings, however,
Mr. Shaw has demonstrated he is more than capable of presenting his case to
the court. Mr. Shaw is likewise able to investigate the facts. Contrary to his
assertions, he may write to his outside physicians and receive correspondence
from them if needed per the protocol described in Cody v. Young, et. al., Civ.
No. 14-4155, United States District Court, District of South Dakota (and
described by the affidavit of Heather Bowers in this case, Docket 66, ¶ 13).
Next, Mr. Shaw asserts he requires counsel because there will be conflicting
testimony. Should Mr. Shaw’s claims survive summary judgment on the
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qualified immunity issue, the court will revisit appointment of counsel for
purposes of determining whether counsel is necessary to cross-examine
witnesses at trial. Mr. Shaw has demonstrated his ability to present his claims
on a pro se basis.
Therefore, it is ORDERED that Mr. Shaw’s third motion for appointment
of counsel (Docket 77) is DENIED.
DATED this 16th day of June, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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