United States District Court, D. South Dakota, Southern Division
ORDER DENYING PLAINTIFF'S THIRD MOTION TO APPOINT
COUNSEL AND ORDER ON MISCELLANEOUS MOTIONS
E. SCHREIER UNITED STATES DISTRICT JUDGE.
James Elmer Shaw, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. Shaw filed a pro se civil
rights lawsuit under 42 U.S.C. § 1983. Docket 1. At this
point, Shaw's remaining claims arise under the Religious
Land Use and Institutionalized Persons Act (RLUIPA) and the
First Amendment (free exercise, right to receive mail, access
to courts), and he has a claim of retaliation. See
filed a third motion to appoint counsel (Docket 182) and
multiple motions to compel discovery (Dockets 147, 149, 151,
153, 155, 157, 159, 161, 163, 165, 167). This court addresses
these motions below.
Third Motion to Appoint Counsel
filed a third motion to appoint counsel. Docket 182. “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). Under 28
U.S.C. § 1915(e)(1) “[t]he court may request an
attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). District courts
may appoint counsel and the Eighth Circuit has acknowledged
the “express authority of the district court to make
such appointments.” Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1004 (8th Cir. 1984); see
also White v. Walsh, 649 F.2d 560, 563 (8th
Cir. 1981). “[T]he appointment of counsel should be
given serious consideration by the district court if the
plaintiff has not alleged a frivolous or malicious
claim.” Nelson, 728 F.2d at 1005.
determining whether to appoint counsel to a pro se litigant,
the court will look at the factual and legal complexity of
the claims. In King v. Patterson, the Eighth Circuit
held that the district court did not err in denying a
prisoner's motion for appointment of counsel. 999 F.2d
351, 353 (8th Cir. 1993). The Eighth Circuit reasoned that
the denial of the plaintiff's motion for appointment of
counsel was appropriate “[b]ecause the case was neither
factually nor legally complex, the complaint alleged a single
incident of excessive force, and the Court held that King had
clearly communicated his concerns and could adequately
present the facts of his case to the Court[.]”
complexity is not the only factor that a district court
considers whether appointment of counsel is appropriate.
Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir.
1986) (citing Maclin v. Freake , 650 F.2d 885, 888
(7th Cir. 1981)). The Eighth Circuit considers “the
factual complexity of the case, the ability of the indigent
to investigate the facts, the existence of conflicting
testimony, the ability of the indigent to present his claim
and the complexity of the legal issues.” Abdullah
v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (citing
Johnson, 788 F.2d at 1322-23.). In Johnson,
the Eighth Circuit held that the district court erred when it
denied plaintiff's motion for counsel solely based on the
plaintiff's failure to raise factually complex issues.
788 F.2d at 1322.
time, Shaw appears to be able to adequately present his
remaining claims. His remaining claims are not legally or
factually complex. Discovery is still ongoing, and Shaw was
able to survive a summary judgment motion on a number of
claims. See Docket 139. Further, Shaw has prepared
interrogatories and served them on opposing counsel.
See Dockets 148-1, 150-1, 152-1, 154-1, 156-1,
158-1, 160-1, 162-1, 164-1, 166-1, 168-1. Shaw's briefs,
motions, and interrogatories show his ability to clearly
communicate his legal positions to the other parties as well
as to the court. Thus, his third motion to appoint counsel
(Docket 182) is denied.
Motions to Compel Discovery
28, 2019, Shaw moved for orders compelling discovery. Dockets
147, 149, 151, 153, 155, 157, 159, 161, 163, 165,
In the motions to compel, Shaw claims that on May 17, 2019,
he served defendants with a “second set of
interrogatories [because they lost the first copies],
production requests and request for admissions.” Docket
147 ¶ 10. Shaw claims that the defendants' responses
to the admission section were “evasive, incomplete and
otherwise unresponsive.” Id. at ¶ 13.
5, 2019, the defendants filed a brief in support of their
response to Shaw's motions to compel discovery and stated
that “[d]efendants are still in the process of
compiling the responses to Plaintiff's Interrogatories
and Requests for Production of Documents. Defendants expect
to have responses to Plaintiff within the next two
weeks.” Docket 172 at 2. Federal Rule of Civil
Procedure 37(a)(1) governs motions to compel discovery. It
On notice to other parties and all affected persons, a party
may move for an order compelling disclosure or discovery. The
motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort
to obtain it without court action.
has not shown further efforts to confer with defendants after
they stated they were working on compiling their responses.
See Docket 185.
have stated their intentions of compliance and Shaw has not
shown that he has made an effort to obtain this material
without court action. Thus, Shaw's motions to compel
discovery (Dockets 147, 149, 151, 153, 155, 157, 159, 161,
163, 165, 167) are denied. But in the event defendants have
not responded to Shaw's discovery ...