United States District Court, D. Minnesota
James N. Brown, Jr., Plaintiff,
Associate Warden G. Cooper; Ken Hyle, Asst. Director; Sara Revell, Regional Director; Kathleen Kenney, Gen. Counsel; L. LaRiva, Warden; L. Janssen, R.N.; C. Orum, Unit Manager; FNU Sanson; A. Cossette, Unit Manager; D. Holbus, Lieutenant; C. Stromberg, c/o FNU Hare, Lieutenant Peter Arroyo; Charles Slater, MD; Sheila Hadaway, MD; Misbah Baqir, MBBS; Mayo Clinic; M. Porter, R.N., Supervisor; and T. Miller, Captain; Defendants.
R. THORSON UNITED STATES MAGISTRATE JUDGE.
se Plaintiff James Brown, Jr., moves for appointment of
counsel. (Doc. No. 40.) Indigent litigants do not have a
constitutional or statutory right to counsel in civil cases.
Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013).
Rather, the appointment of counsel in cases such as this one
is a matter committed to the discretion of the trial court.
Id. “The relevant criteria for determining
whether counsel should be appointed include the factual
complexity of the issues, the ability of the indigent person
to investigate the facts, the existence of conflicting
testimony, the ability of the indigent person to present the
claims, and the complexity of the legal arguments.”
Phillips v. Jasper County Jail, 437 F.3d 791, 794
(8th Cir. 2006). If the motion for counsel is brought early
in the proceeding, there may be “no conflicting
testimony” and no indication in the record that
plaintiff is “unable to investigate or present his
case.” Phillips, 437 F.3d at 794. A
plaintiff's “well-written filings with the court
indicate his basic ability to state [his] claims.”
Ward, 721 F.3d at 943 (internal quotation omitted).
first request for counsel was denied on March 13, 2018
without prejudice. (Doc. No. 15.) As described in his first
request, Plaintiff claims that aspects of his case will be
too complex for him to handle and that he is unable to obtain
expert affidavits from prison. He also cites to his health
problems. (Doc. No. 40.) Thus far, however, there are no
signs that Plaintiff is having trouble communicating with the
Court. The complaint and the various motions filed by
Plaintiff demonstrate that he is able to investigate his
claim and adequately describe the factual and legal issues in
his case. Ward, 721 F.3d at 943. The motion for
appointment of counsel will once again be denied without
prejudice should Brown wish to renew it at a later time in
also moves the Court to provide him with a medical expert to
assist with his case. (Doc. No. 42.) Plaintiff states that he
“received a letter from the defendant Mayo Clinic and
Dr. Misbah Baqir requesting that he get a affidavit from a
medical expert” and that he “is in no way at all
able to get this due to being in prison.” (Doc. No. 40
at 4.) Plaintiff has attached a June 8, 2018 letter from Mayo
and Dr. Misbah Baquir indicating that they believed Plaintiff
had intended to assert a medical malpractice claim against
the “Mayo Defendants” requiring an affidavit of
expert review pursuant to Minnesota Statute Section 145.682.
(Doc. No. 43.)
Plaintiff is attempting to bring a medical malpractice claim
against the Mayo Defendants, Minnesota state law could apply,
presumably requiring Plaintiff to furnish two expert
affidavits in support of his claims. Plaintiff states he
“is in no way able to provide a medical expert, because
of being incarcerated and having no phone or email to make
contact with the free world, things like this is out of
plaintiff reach. This like this counsel could be best to
handle these issue, this is why plaintiff should be appointed
counsel.” (Doc. No. 42.) Plaintiff is not entitled to
affirmative assistance from the Court in litigating his
claims. See Baker v. Immanuel Med. Ctr., No.
8:06CV655, 2007 WL 2914547, at *2 (D. Neb. Oct. 3, 2007)
(“Granting leave to proceed in forma pauperis does not
grant the right to affirmative assistance from the court in
conducting discovery.”) Further, Federal Rule of
Evidence 706 provides for the appointment of a neutral expert
and does not contemplate the appointment of and compensation
for an expert to aid one of the parties. See Griffin v.
Hillsborough Cnty. Dep't of Corr., No. 13-cv-539-SM,
2015 WL 3970291, at *3 (D.N.H. June 30, 3015). As other
courts have pointed out, Plaintiff's
“dilemma” because of his inability to pay for
expert witnesses does not differ from that of nonprisoner
claimants. See Kennedy v. Huibregtse, Case No.
13-CV-4, 2015 WL 13187299, at *3 (E.D. Wis. June 29, 2015).
not to say that a court should never exercise its discretion
to appoint a neutral expert under Rule 706 in compelling
circumstances. Such circumstances are not presented here.
See Smith v. Jenkins, 919 F.2d 90, 94
(8th Cir. 1990). Therefore, this motion will also
1. Plaintiff's Motion for Appointment of Counsel (Doc.
No. 40) is DENIED without prejudice; and
2. Plaintiff's Motion for Medical Expert (Doc. No. 42) is
 This Court makes no findings as to
Plaintiff's claims or the applicable law at this