Shaw v. Young et al
ORDER granting 44 Motion to Stay Discovery; denying 48 Motion to Appoint Counsel. Defendants have 30 days to produce Shaw's medical records and other documents as discussed in this Order. Signed by U.S. District Judge Karen E. Schreier on 1/31/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
JAMES ELMER SHAW,
TROY PONTO, ASSOCIATE WARDEN;
AL MADSON, UNIT MANAGER; SAM
BADURE, UNIT MANAGER; DERICK
BIEBER, UNIT MANAGER; JACOB
GLASER, UNIT COORDINATOR; MARY
CARPENTER, M.D. (HEALTH
SERVICES); E. R. REGIER, M.D.
(HEALTH SERVICES); HEATHER
BOWERS, RN (HEATH SERVICES); and
AUDREY SHEDD, HEAD RN;
ORDER GRANTING MOTION FOR
PROTECTIVE ORDER AND DENYING
MOTION TO APPOINT COUNSEL
Plaintiff, James Elmer Shaw, filed this pro se civil rights lawsuit under
42 U.S.C. § 1983. Docket 1. Shaw has now filed his fourth amended complaint,
and defendants move the court to enter a protective order staying discovery.
Docket 44. Shaw also moves the court to appoint him counsel. For the
following reasons, defendants’ motion is granted, and Shaw’s motion is denied.
M otion for Protective Order
Pursuant to Rule 26(c), “the court has discretion to stay discovery on
other issues until the critical issue has been decided.” 8A Charles Alan Wright,
Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2040
(3d ed.); see also Maune v. Int'l Bhd. of Elec. Workers, 83 F.3d 959, 963
(8th Cir. 1996) (upholding the district court's granting of a party’s request to
stay discovery). Because the qualified immunity issue may be dispositive, the
court grants defendants’ motion to stay discovery pending resolution of that
The court grants defendants’ motion for protective order to the extent
they seek a protective order until the qualified immunity issue is settled. The
court makes no ruling on defendants’ arguments that a number of Shaw’s
discovery requests are irrelevant or inappropriate. The court will rule on these
matters, if necessary, after the qualified immunity issue has been resolved.
In his response, Shaw questions whether defendants’ motion is certified
and timely. Docket 46 at 1-2. Because the court finds that the motion was
properly filed, the court rejects these objections. Shaw also states that some of
the discovery he requests is necessary to resolve the qualified immunity
question. Id. at 4. The court agrees. To the extent that Shaw requests his
medical records or other documents (such as emails) that concern his medical
treatment, defendants must produce these documents. Defendants argue that
requiring them to engage in “broad discovery” would rob them of the
protections provided by qualified immunity. Shaw’s medical records and any
administrative records concerning his medical treatment, however, do not
represent broad discovery and are necessary to the qualified immunity
M otion to Appoint Counsel
Shaw moves the court to appoint him counsel. Docket 48. The court
previously appointed Shaw counsel, Docket 27, but counsel withdrew from the
case, citing “a conflict of interest and a breakdown in attorney-client
communication . . . .” Docket 39. Shaw again moves the court to appoint him
counsel. Docket 48. Upon further review, the court finds that Shaw is able to
“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. Shaw’s claims are not
complex, and he appears able to adequately present his § 1983 claims at this
time. Therefore, his motion is denied.
Thus, it is ORDERED
Defendants’ motion to stay discovery (Docket 44) is granted.
Defendants have 30 days to produce Shaw’s medical records and
other documents as discussed above.
Shaw shall respond to defendants’ motion for summary judgment
by March 31, 2017.
Shaw’s motion to appoint counsel (Docket 48) is denied..
Dated January 31, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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