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Joey T. Stakey v. Klint H. Stander; Dr. Hadlock; Howard Willis; Tim Mchugh; Deitchler

March 10, 2011

JOEY T. STAKEY, PLAINTIFF,
v.
KLINT H. STANDER; DR. HADLOCK; HOWARD WILLIS; TIM MCHUGH; DEITCHLER LANE; ROBERT BALFOUR; ANDY MACHIN; TOM MANWARING; LARRY HYNES; COLLEEN SMITH; JAN EPP; APRIL DAWSON; CORRECTIONAL MEDICAL SERVICES, INC.; RANDY BLADES; JOHN HARDISON; AND JOHANNA SMITH; DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

ORDER

Pending before the Court are several motions filed by Plaintiff that are ripe for adjudication. Having reviewed the arguments of the parties and having considered the record in this matter, the Court enters the following Order.

BACKGROUND

Plaintiff, an inmate in custody of the Idaho Department of Correction (IDOC) alleges that Correctional Medical Services (CMS) Defendants were deliberately indifferent by improper treatment of his right shoulder injuries and improper provision of pain medication between 2007 and 2009, violating the Eighth Amendment of the United States Constitution. Plaintiff further alleges that the individual CMS Defendants were medically negligent under state law, a supplemental jurisdiction claim. Defendants have filed a motion for summary judgment on all of Plaintiff's claims. (Dkt. 70.)

PLAINTIFF'S MOTION FOR RECONSIDERATION OF APPOINTMENT OF COUNSEL AND REQUEST FOR EXTENSION OF TIME TO FIND COUNSEL AND AN EXPERT WITNESS AFTER RELEASE ON PAROLE

Plaintiff seeks reconsideration of the Court's Order (Dkt. 8); he again asks for appointment of counsel. (Dkt. 59.) He is proceeding in forma pauperis status. (Dkt. 39.) Plaintiff is now at the prison work center, earning an income (that cannot be accessed to pay an attorney), and preparing for release on parole.

Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court's discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1330-31 (9th Cir. 1986); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

Plaintiff's Motion for Reconsideration of Request for Appointment of Counsel is extremely well-drafted and well-argued, cutting against his assertion that he is unable to adequately protect his interests in this lawsuit if he proceeds pro se. The Court finds that none of the factual information contained in his new Motion shows that the earlier decision denying appointment of counsel should be disturbed.

There is no doubt that it is difficult to litigate from a prison cell and that pro se individuals do not have the legal training or resources to do what they could if they were lawyers or had lawyers. However, prisoner status and lack of legal expertise are not enough to warrant appointment of counsel.

In Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." In Lewis v. Casey, 518 U.S. 343 (1996), the Court explained the limitations of the Bounds holding. There, the Court emphasized that "Bounds did not create an abstract, freestanding right to a law library or legal assistance." 518 U.S. at 351. A careful review of the Casey decision demonstrates that the Supreme Court has limited the application of Bounds to initial filings of prisoner cases involving their convictions or conditions of confinement. Particularly, the Court stated:

It must be acknowledged that several statements in Bounds went beyond the right of access recognized in the earlier cases on which it relied, which was a right to bring to court a grievance that the inmate wishes to present. These statements appear to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court. These elaborations upon the right of access to the court have no antecedent in our pre-Bounds cases, and we now disclaim them." 518 U.S. at 354 (emphasis added).

Here, Plaintiff's inability to more fully litigate his claims are "incidental (and perfectly constitutional) consequences of conviction and incarceration." Lewis v. Casey, 518 U.S. 343, 355 (1996). Plaintiff has shown that his litigation skills exceed that of most prisoners, despite the medical and personal difficulties he cites in his Motion and Affidavit. Accordingly, his Motion for Appointment of Counsel will be denied.

Plaintiff also moves the Court to permit an extension of time until his tentative parole release date of March 3, 2011, to allow Plaintiff sufficient time to hire an attorney and an expert witness in this case. (Dkt. 62.) Good cause appearing, the Court will permit Plaintiff to have several months to find counsel and an expert and file a supplement to his response to Defendant's pending motion for ...


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