Opinion
Civil No. 03-5196 ADM/RLE.
March 24, 2005
Craig Allen Smith, pro se.
Lonnie F. Bryan, Esq., Assistant U.S. Attorney, Minneapolis, MN, on behalf of Defendant.
ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Craig Allen Smith's ("Plaintiff") Appeal [Docket No. 42] of Magistrate Judge Raymond L. Erickson's Minute Order of March 3, 2005 ("Order") [Docket No. 41]. The Order denies Plaintiff's Motion for Appointment of Counsel [Docket No. 27] and Motion for a Protective Order [Docket No. 28] and grants the United States of America's ("Defendant" or "Government") Motion to Take the Deposition of the Plaintiff by Telephone and to Extend the Discovery Deadline [Docket No. 33]. For the reasons set forth below, the Order is affirmed.
II. BACKGROUND
As there is no objection to the procedural and factual background of this case as described in the Order, it is incorporated by reference. Since it is brief, it is excerpted below for reference:
The Plaintiff, who is currently an inmate at the Federal Correctional Institution in Greenville, Illinois ("FCI-Greenville"), commenced this action against the United States, pursuant to the Federal Tort Claims Act ("FTCA"). The Plaintiff alleges that he was injured as a result of the Defendant's negligent failure to repair a dangerous condition at the Federal Medical Center in Rochester, Minnesota ("FCI-Rochester").
As part of its discovery, the Defendant noticed the deposition of the Plaintiff for Febraury 15, 2005. The Plaintiff refused to participate in the taking of the deposition without counsel, and instead, filed the pending Motion for a Protective Order, which seeks to delay the taking of the deposition until his Motion to Appoint Counsel has been resolved, and he is able to obtain representation. The chief concern expressed by the Plaintiff is that, absent representation, he will be unable to make and preserve necessary objections during the taking of his deposition. As a result of the Plaintiff's Motion, the discovery deadline, which was set for March 1, 2005, passed without the Defendant being able to taking [sic] a deposition of the Plaintiff.
Order at 2.
After determining Plaintiff was capable of effectively litigating his claims in the absence of appointed counsel, Judge Erickson found Plaintiff's Motion for a Protective Order was moot and granted Defendant's Motion to Take the Deposition of the Plaintiff by Telephone and to Extend the Discovery Deadline.
III. DISCUSSION
A. Standard of Review
The standard of review for appeals of a magistrate judge's order on nondispositive pretrial matters is deferential. The district court must affirm an order by a magistrate judge unless it is "clearly erroneous or contrary to law." See D. Minn. LR 72.1(b)(2); see also Banbury v. Omnitrition Int'l Inc., 818 F. Supp. 276, 279 (D. Minn. 1993). "A finding is `clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Chakales v. Commissioner of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996).
B. Court's Authority to Appoint Counsel
Plaintiff argues the Magistrate Judge erred by finding the court had no authority to compel legal counsel to assume representation of the Plaintiff. He cites to several cases that refer to the "appointment" of counsel to support his interpretation. See, inter alia, Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296 (1989); Scott v. Tyson Foods, 943 F.2d 17 (8th Cir. 1991);Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir. 1984); Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996).
Under 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." The Supreme Court has held that a court has no authority under § 1915 to compel an attorney to represent an indigent litigant in a civil case. Mallard, 490 U.S. 296. Instead, a court has only discretionary authority to request that legal counsel assume such representation. Id. at 301. While Plaintiff correctly notes that opinions often use the word "appoint" interchangeably with the word "request," the Ninth Circuit has explained:
[F]ederal courts are in the habit of using the language of mandatory appointment of counsel. Because the overwhelming majority of motions for counsel in federal courts properly request "appointment" of counsel, courts naturally fall into using "appointment" language without considering whether it is appropriate.United States v. 30.64 Acres of Land, 795 F.2d 796, 799 (9th Cir. 1986).
Plaintiff cites to Taylor v. Dickel, 293 F.3d 427 (8th Cir. 2002) and Slaughter v. City of Maplewood, 731 F.2d 587, 589 (8th Cir. 1984) to support his claim that the Court can compel an attorney to represent him in this matter. Both cases are inapposite. Taylor addressed whether the district court abused its discretion by summarily denying his requests for a new counsel. 293 F.3d at 439. The Taylor court acknowledged, however, that plaintiff "has no constitutional right to counsel as a civil litigant."Id. Slaughter concerned whether a district court's decision to summarily deny plaintiff's application for counsel was immediately appealable. 731 F.2d at 588. The Eighth Circuit never questioned the district court's authority to deny such an application provided the court exercised a reasoned and well informed discretion. Id. at 589. Furthermore, Slaughter considered whether the court should appoint counsel in the context of civil rights actions brought under Title VII and Section 1983. Id. at 589-90. The complicated statutory scheme and public policy reasons for promoting civil rights is not implicated by a slip and fall tort claim seeking money damages.
For the aforementioned reasons, the Order correctly found the Court had only discretionary authority to request an attorney represent Plaintiff.
C. Denial of Plaintiff's Motion for Appointment of Counsel
Plaintiff contends the Magistrate Judge erred by not analyzing each of the factors set out in Slaughter before denying his Motion for Appointment of Counsel. The Slaughter Court stated "[t]hree factors are generally considered relevant in evaluating applications for appointment of counsel in Title VII cases: (1) the plaintiff's financial resources, (2) the plaintiff's efforts to secure counsel, and (3) the merits of the discrimination claim." 731 F.2d at 590 (citations omitted). Specifically, Plaintiff argues Judge Erickson did not consider the merits of his claim before denying his Motion for Appointment of Counsel.
In Plummer, the Eighth Circuit directed that a district court, in determining whether to exercise discretionary authority to request counsel, should:
decide whether the plaintiff and the court will substantially benefit from the appointment of counsel, considering the factual and legal complexity of the case, the plaintiff's ability to investigate the facts, the existence of conflicting testimony, and the ability of the plaintiff to present his claim.87 F.3d at 1033. A district court may properly refuse to request counsel for a civil plaintiff, notwithstanding a meritorious claim, if the court determines the facts and legal issues are not so complex as to require an attorney. See, e.g., id. at 1033;Lovelace v. Dall, 820 F.2d 223 (7th Cir. 1987). Furthermore, in Plaintiff's Motion for Appointment of Counsel, Plaintiff claimed "[t]hat due to the complexity of pre-trial discovery and actual trial procedure itself, the plaintiff cannot effectively present his claims in this court to assure that the ends of justice are met." Motion for Appointment of Counsel ¶ 6. At no time has Plaintiff explained the merits of his case.
Given Plaintiff's concerns, Judge Erickson properly conducted an evaluation of the complexity of the case. Plaintiff's negligence claim alleges that, while incarcerated at FMC-Rochester, he fell and was injured as a result of a dangerous hand rail. In assessing the complexities of the case, Judge Erickson found:
Although there may be conflicting evidentiary contentions, their full explanation before the Court will not require the skillful and practiced questioning techniques associated with representation by legal counsel. Undoubtedly, the Plaintiff's lack of legal knowledge will present some disadvantages, in terms of the requisite time and effort that may be attendant to the presentation of his claim, but upon our review of his submissions to the Court thus far, has satisfied us that he possesses the capacity to develop and articulate the grievances, which are presented in his Complaint.
Order at 5-6. The Plaintiff has presented no evidence to suggest Judge Erickson's conclusions are erroneous or contrary to the law. The claim arises out of a single incident and Plaintiff has not identified any witness to the alleged fall. He has obtained his medical records and the Government represents that both parties intend to rely on Plaintiff's treating physicians. Resp. to Objections and Appeal [Docket No. 43] at 3. Although Defendant has disclosed two expert witnesses, the facts surrounding the alleged incident appear straightforward. The Order also notes "Plaintiff currently resides at some distance from this District, and his case may require an attorney to expend his or her own funds to retain expert opinion evidence, or face a claim of malpractice." Order at 4. After a thorough analysis of the complexity of the case, Judge Erickson found the Plaintiff and the Court will not "substantially benefit from the appointment of counsel" and determined the Court should not exercise its discretionary authority to request an attorney represent Plaintiff. Plummer, 87 F.3d at 1033. Judge Erickson's Order is not clearly erroneous or contrary to law, and therefore the Court must uphold the Order.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. The Order [Docket No. 41] is AFFIRMED;
2. Plaintiff's Appeal of the Order [Docket No. 42] is DENIED;
3. Plaintiff's Motion for Appointment of Counsel [Docket No. 27] is DENIED;
4. Plaintiff's Motion for a Protective Order [Docket No. 28] DENIED; and
5. Defendant's Motion to Take the Deposition of the Plaintiff by Telephone and to Extend the Discovery Deadline [Docket No. 33] is GRANTED.