Thunder Hawk-Gallardo v. USM Name Unknown et al

Filing 40

ORDER granting 32 Motion for Protective Order; denying 30 Motion to Appoint Counsel ; denying as moot 31 Motion for Discovery. Defendant must file his motion for summary judgment by December 1, 2017. Signed by U.S. District Judge Karen E. Schreier on 10/19/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
FRANK THUNDER HAWK-GALLARDO,

4:17-CV-04001-KES

Plaintiff,
vs.

ORDER

JEREMY WENDLING,
Defendant.

Frank Thunder Hawk-Gallardo is an inmate at the Pennington County
Jail in Rapid City, South Dakota. He filed a pro se civil rights lawsuit under 42
U.S.C. § 1983. Docket 28. Thunder Hawk-Gallardo now moves the court to
appoint counsel for him and to grant him discovery. Dockets 30 and 31.
Defendant, Jeremy Wendling, moves this court for a protective order. Docket
32.
Thunder Hawk-Gallardo requests 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. Thunder Hawk-Gallardo’s claims are not complex, and

he appears able to adequately present his § 1983 claims at this time.
Therefore, his motion for appointment of counsel is denied.
Wendling moves the court to enter a protective order. Under 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, and
Richard L. Marcus, Federal Practice and Procedure § 2040 (3d ed.). A stay of
discovery is within the district court’s discretion and is reviewed by the
appellate court for an abuse of that discretion. Steinbuch v. Cutler, 518 F.3d
580, 588 (8th Cir. 2008) (citing Lakin v. Prudential Sec., Inc., 348 F.3d 704,
713 (8th Cir. 2003)); 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). The United States Supreme Court has held that “the driving
force behind the qualified immunity doctrine was a desire to insure that
insubstantial claims against government officials [will] be resolved prior to
discovery.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because the
qualified immunity issue may be dispositive, the court grants Wendling’s
motion to stay discovery. Because the motion to stay is granted, Thunder
Hawk-Gallardo’s motion for discovery is denied as moot.
Thus, it is ORDERED
1. Thunder Hawk-Gallardo’s motion to appoint counsel (Docket 30) is
denied.
2. Defendant’s motion for protective order (Docket 32) is granted.
Discovery will be stayed until the court determines the issue of
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qualified immunity. If summary judgment is denied, the stay of
discovery will be lifted.
3. Defendant must file his motion for summary judgment by
December 1, 2017.
4. Thunder Hawk-Gallardo’s motion to request discovery (Docket 31)
is denied as moot.
Dated October 19, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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