United States District Court, D. Nebraska
F. Rossiter, Jr. United States District Judge
matter is before the Court on correspondence from plaintiff
James Cotton (“Cotton”) (Filing No. 27). The
Court construes the correspondence as a Motion for
Appointment of Counsel and for an Extension of Time in which
to File an Amended Complaint. This is an action for
deprivation of civil rights under the Civil Rights Act of
1871, 42 U.S.C. § 1983; the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101
et seq., as amended, and § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794.
Jurisdiction is based on 28 U.S.C. §§ 1331 and
1343. Cotton, now proceeding pro se, is an inmate at Douglas
County Department of Corrections (“DCDC”). He has
been granted leave to proceed in forma pauperis.
October 5, 2016, in a ruling on the defendants' Motion to
Dismiss, the Court granted Cotton, then represented by
counsel, leave to file an Amended Complaint within fourteen
days. Thereafter, United States Magistrate Judge Thomas
Thalken granted Cotton's counsel leave to withdraw,
denied Cotton's request for appointment of counsel, and
extended the deadline for filing an Amended Complaint to
November 23, 2016. The present motion was filed on November
28, 2016, but was postmarked November 23, 2016, and is
therefore timely under the “prison mailbox
again requests appointment of counsel and relates to the
Court that he needs additional time because he has allegedly
been assaulted by DCDC staff in retaliation for filing a
complaint and has been denied access to legal materials. The
appointment of counsel in a civil case is governed by 28
U.S.C. § 1915(e)(1). It is within the district
court's sound discretion whether to appoint counsel for
those who cannot pay for an attorney under this provision.
See In re Lane, 801 F.2d 1040, 1044 (8th Cir. 1986);
Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996)
(explaining that “[i]ndigent civil litigants do not
have a constitutional or statutory right to appointed
counsel”). “The trial court has broad discretion
to decide whether both the plaintiff and the court will
benefit from the appointment of counsel [.]”
Id.; see Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1005 (8th Cir. 1984). In
determining whether a person who is indigent should be
appointed counsel, the Court should “tak[e] into
account the factual and legal complexity of the case, the
presence or absence of conflicting testimony, and the
plaintiff's ability to investigate the facts and present
his claim[s].” Davis, 94 F.3d at 447.
has not provided any additional justification for appointment
of counsel and the Court finds appointment of counsel is not
necessary. Cotton's claims are relatively
straightforward. He has demonstrated, in his correspondence
to the Court, an ability to adequately convey his alleged
injuries and claims. Accordingly, the Motion for Appointment
of Counsel will be denied without prejudice to reassertion at
a later time. In the interest of justice, the Court will
grant Cotton an extension of time to file an amended
Cotton's correspondence (Filing No. 27) construed as a
Motion for Appointment of Counsel and for an Extension of
Time in which to File an Amended Complaint is GRANTED in part
and DENIED in part as set forth in this order.
Cotton's motion for appointment of counsel is DENIED.
Cotton's motion for an extension of time is GRANTED.
Cotton shall file an amended complaint within twenty-eight
(28) days of the date of this order.
Clerk of Court shall provide a copy of this Order to Cotton
at his last known address.
See United States v. Harrison,
469 F.3d 1216, 1217 (8th Cir. 2006) (“Under the prison
mailbox rule, a pro se pleading is deemed filed upon deposit
in the prison mail system prior to the expiration of the
filing deadline.”); see also Sulik v. Taney
Cnty.,316 F.3d 813, 815 (8th Cir. 2003) (extending the
prison mailbox rule to 42 U.S.C. § 1983 actions),
rev'd in part on other grounds, 393 F.3d 765
(8th Cir. 2005). In appellate proceedings, the prison mailbox
rule has been extended to all documents filed by pro se
prisoners. Fed. R. App. P. 25(a)(2)(C). Although there is no
counterpart to Federal Rule of Appellate Procedure
25(a)(2)(C) in district courts, some courts have applied the
prison mailbox rule to ...