United States District Court, D. South Dakota, Northern Division
CHARLES B. KORNMANN, United States District Judge
instituted this action contending that he was injured at the
Roberts County Jail as a result of unsafe prison conditions
and that defendants failed to attend to his serious medical
needs. I granted leave to proceed in forma pauperis
and ordered the U.S. Marshals Service to serve the summons
and complaint upon plaintiff paying the initial filing fee.
Plaintiff thereafter filed an amended complaint to which
defendant Tasa filed an answer. Defendants Medbery and
Roberts County filed a motion to dismiss for insufficient
service of process. Plaintiff filed a motion to have
defendants re-served properly. In an attempt to remedy the
service of process issue, plaintiff submitted a new civil
rights complaint along with another motion to proceed without
the prepayment of fees. I directed the Clerk of Courts to
file the complaint as a second amended complaint so that
plaintiff would not have to pay an additional filing fee.
Defendants have filed an answer to the second amended
has filed a discovery motion wherein he requests the Court
order defendants to produce copies of his medical records
along with copies of jail camera films related to his fall
and related to his claim that certain unsafe prison
conditions existed and continued to exist. Plaintiff is
proceeding pro se and in forma pauperis and
is unable to obtain his own medical records or discovery.
Production of such records is appropriate and would be
required in response to a request for production of documents
if plaintiff were represented by counsel.
shall provide copies of any medical records for any treatment
he received while in custody at the Roberts County Jail. Any
such medical records, although belonging to plaintiff, were
incident to defendants' role as custodian and should be
provided to plaintiff. Plaintiff will be required to sign a
medical release form and defendants should provide such fonn
should provide copies of relevant jail films to plaintiff and
shall file the same with the Court. Plaintiff also requests
the Court order defendants to photograph the ceiling of the
relevant cell block to document his claims. Ordinarily,
defendants are not required to affirmatively obtain evidence
to support plaintiffs claims. However, defendants were
plaintiffs custodian and he was and is without the assistance
of counsel to document such matters for himself. It is
appropriate to require defendants to photograph the ceiling
of the cell block wherein plaintiff was housed at the time he
claims that he was injured and at any time while he was
housed at the Roberts County Jail. Copies of such photographs
should be provided to plaintiff and filed with the Court.
had filed a motion for the appointment of counsel. The United
States Court of Appeals for the Eighth Circuit has held:
"[A]n indigent pro se prison litigant who has met his
burden of showing his complaint not to be frivolous pursuant
to 28 U.S.C. § 1915(d) should be appointed counsel where
necessary." Reynolds v. Foree, 771 F.2d 1179,
1181 (8th Cir.1985) (per curiam). The district court
should determine whether the nature of the litigation is such
that plaintiff as well as the court will benefit from the
assistance of counsel. Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1005 (8th Cir. 1984).
Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir.
Although factual complexity is certainly a relevant factor
for a district court to consider in determining an indigent
litigant's need for appointment of counsel, it is not the
only factor. We believe that in addition to factual
complexity, the district court should also consider the
ability of an indigent to investigate the facts, the
existence of conflicting testimony, the ability of an
indigent to present his claim, and the complexity of the
legal issues. These factors are "by no means an
exclusive checklist, " and the weight to be given any
one factor will vary with the case.
Johnson v. Williams, 788 F.2d at 1322-23 (internal
of counsel is not necessary at this time. The case is not
factually complex. Discovery is also not complex in this
case. I will re-visit the propriety of appointment of counsel
therefore, IT IS ORDERED:
Plaintiff s motion, Doc. 13, to produce records is granted.
Defendants shall provide a medical release to plaintiff and,
upon receipt, obtain copies of medical records which were
generated while plaintiff was in the defendants' custody.
Defendants shall provide to defendant and file with the court
copies of films showing the time of plaintiff s alleged fall
and any films showing the condition of the jail relevant to
the claimed leak in the ceiling. Defendants shall also cause
photographs to be taken of the condition of ...