United States District Court, D. South Dakota, Southern Division
ORDER LIFTING STAY AND DENYING MOTIONS
E. SCHREIER UNITED STATES DISTRICT JUDGE
Bruce Edgar Smith, filed a pro se civil rights lawsuit under
42 U.S.C. § 1983. Docket 1; Docket 1-1. The court stayed
Smith's case because he filed the same complaint in state
court. Docket 14. Smith filed a variety of motions and other
filings. For the reasons below, the court lifts the stay and
denies Smith's motions.
Stay on Smith's Case
reviewing Smith's complaint, the court sua
sponte stayed the case because Smith filed the same
complaint in state court. Docket 14. The court ordered Smith
to notify it on the status of the state court case.
Id. Smith has now provided this court with
documentation showing that the state court proceeding has
been dismissed without prejudice. Docket 48-1. Therefore, the
court lifts the stay on Smith's case, and he may proceed.
also filed a motion titled “Plaintiff's Motion For
Activation of The Staying Order To Be Now Changed Under This
‘Writ of Coram Nobis' and Under The Fed.R.Civ.P.,
Rule 60(a).” Docket 42. To the extent this motion seeks
to lift the stay, it is denied as moot. To the extent this
motion seeks to change the cause of action, it is denied. As
discussed below, Smith has filed multiple motions to amend,
and he must follow the proper procedure for a motion to amend
to change the complaint.
Motion for Service
moves the court to serve his complaint. Docket 29. Because
his complaint has not been screened under 28 U.S.C. §
1915A, and because it is unclear which filing constitutes his
complaint, it is inappropriate to serve his complaint.
Therefore, his motion for service is denied.
Motion to Appoint Counsel
moves the court to appoint him counsel. Docket 31. “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. Smith's claims are not complex, and
he appears able to adequately present his § 1983 claims
at this time. Therefore, his motion is denied.
court is aware that this situation may change as litigation
progresses. As the Eighth Circuit Court of Appeals instructs,
the 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.
Motions for Preliminary Injunction or Temporary Restraining
moves the court to enter a preliminary injunction or
temporary restraining order. Docket 32; Docket 44; Docket 49.
At this time, it is premature to grant Smith this relief. His
complaint has not been screened, and he has filed numerous
motions to amend his complaint. Therefore, his motion is