United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
the court is Plaintiff's motion for appointment of
counsel or, in the alternative, motion for preliminary
injunction. (Filing No. 32.)
states that the Nebraska Department of Correctional Services
(“NDCS”) does not respect U.S. Supreme Court
precedent on the constitutional right of access to the
courts. He alleges that “NDCS prohibits prisoners from
helping [him] with his legal matters and threatens to
prosecute prisoners for una[u]thorized practice of law by
helping plaintiff.” He states that NDCS legal aides are
prohibited from giving “meaningful” legal
assistance. He admits that a “lay advocate”
helped him write his current motion but did so under
“the perils” from NDCS because, otherwise,
Plaintiff would have been unable to present a
“coherent” motion to the court due to his
“learning, reading/comprehension disability and
[inability] to read, analyze and write legal
materials.” Plaintiff seeks the appointment of counsel
or a preliminary injunction against NDCS “from impeding
[his] help from other prisoners and/or assigned legal aides,
” so that he can defend against Defendant's future
summary judgment motion which “will require effective
research and legal writing.” Motion for
Counsel The court cannot routinely appoint
counsel in civil cases. In Davis v. Scott, 94 F.3d
444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals
explained that “[i]ndigent civil litigants do not have
a constitutional or statutory right to appointed
counsel.” Trial courts have “broad discretion to
decide whether both the plaintiff and the court will benefit
from the appointment of counsel, taking 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.” Id. Having considered these factors,
the request for the appointment of counsel will be denied
without prejudice to reassertion.
for Preliminary Injunction
Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d
109 (8th Cir. 1981), the court clarified the factors district
courts should consider when determining whether to grant a
motion for preliminary injunctive relief:
(1) the threat of irreparable harm to the movant; (2) the
state of balance between this harm and the injury that
granting the injunction will inflict on other parties
litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.
Id. at 114. “No single factor in itself is
dispositive; rather, each factor must be considered to
determine whether the balance of equities weighs toward
granting the injunction.” United Indus. Corp. v.
Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998).
“At base, the question is whether the balance of
equities so favors the movant that justice requires the court
to intervene to preserve the status quo until the merits are
determined. . . .” Dataphase, 640 F.2d at 113.
The burden of proving that a preliminary injunction should be
issued rests entirely with the movant. Modern Computer
Systems v. Modern Banking Systems, 871 F.2d 734, 737
(8th Cir. 1989) (en banc). In the prison context, a request
for injunctive relief must always be viewed with great
caution because “judicial restraint is especially
called for in dealing with the complex and intractable
problems of prison administration.” Rogers v.
Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982).
alleges that NDCS has impaired his right to access to the
courts because it prohibits prisoners from helping him with
his legal matters, allegedly by threatening to prosecute
prisoners for unauthorized practice of law and prohibiting
legal aides from giving “meaningful” legal
assistance. Plaintiff fails to allege any specific factual
allegations to support these conclusory statements. Further
Plaintiff does not claim he is wholly illiterate,
see Johnson v. Avery, 393 U.S. 483 (1969)
(invalidating regulation prohibiting prisoners from assisting
each other because of its effect on illiterate inmates), and
he does not claim that NDCS declines to assign him a legal
aide, who NDCS has authorized to be a
“jailhouse lawyer, ” or any type of other legal
assistance. Prisoners do not have absolute right to a
specific type of legal assistance. See Bear v.
Kautzky, 305 F.3d 802, 806 (8th Cir. 2002)
(“[T]here is no one prescribed method of ensuring
inmate access to the courts. A prison system may experiment
with prison libraries, jailhouse lawyers, private lawyers on
contract with the prison, or some combination of these and
other devices, so long as there is no actual harm to the
access rights of particular inmates.”); Ramos v.
Lamm, 639 F.2d 559, 583 (10th Cir. 1980) (citing
Bounds v. Smith, 430 U.S. 817, 830-32 (1977)).
must demonstrate actual injury for an access-to-the-courts
claim. Lewis v. Casey, 518 U.S. 343, 350-51 (1996).
A prisoner must show that the prison policies “hindered
his effort to pursue a legal claim.” Id. at
351. Plaintiff has filed a complaint, exhibits, an amended
complaint, motions, and briefs in support of motions. NDCS
has, therefore, not hindered Plaintiff's effort to pursue
his legal claims. See e.g., Hartsfield v.
Nichols, 511 F.3d 826, 832 (8th Cir. 2008)
(access-to-the-courts claim properly dismissed where prisoner
failed to allege that he was actually prevented from filing a
complaint, or a filed complaint was dismissed for lack of
legal adequacy). Further, and perhaps most importantly, it is
too speculative to enjoin NDCS when Plaintiff has filed
multiple pleadings to date and Defendant has not filed a
summary judgment motion. See Goff v.
Harper, 60 F.3d 518 (8th Cir. 1995) (No showing of a
threat of irreparable harm where the threat of harm is too
remote). In short, Plaintiff fails to make the requisite
showing of a threat of irreparable harm. His motion for
preliminary injunction will be denied.
THEREFORE ORDERED that: Plaintiff's motion for counsel
(Filing No. 32) is denied without prejudice to
reassertion. Plaintiff's motion for ...