United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Defendants' Motion for
Extension of Time to Respond to Motion for Discovery (Filing
No. 50) and Motion to Stay Discovery and Further
Proceedings (Filing No. 51). Defendants' first
motion requests an additional seven days to file their
response to Plaintiff's Motion for Discovery (Filing No.
41) due to the Department of Correctional
Services' delay in gathering and sending to counsel the
voluminous discovery materials requested by Plaintiff.
Defendants' second motion requests a stay of further
discovery because Defendants intend to file a summary
judgment motion on the issue of qualified immunity no later
than August 28, 2017.
doctrine of qualified immunity is designed to protect state
actors from monetary damages and the costs associated with
litigation, such as discovery. Harlow v. Fitzgerald,
457 U.S. 800, 817-18 (1982). Qualified immunity is
“an immunity from suit rather than a mere
defense to liability.” Mitchell v. Forsyth, 472
U.S. 511, 526 (1985) (emphasis in original). Thus, where
qualified immunity is asserted as a defense, it is within the
discretion of the court to stay discovery until the issue of
qualified immunity is resolved. See Ballard v.
Heineman, 548 F.3d 1132, 1136-37 (8th Cir. 2008).
Accordingly, Defendants' motions will be granted.
has filed a Motion for the Appointment of Counsel (Filing No.
45), which will be denied.
case is still in its early stages, and it is not clear that
Plaintiff and the court will benefit from the appointment of
counsel at this point. The facts underlying Plaintiff's
claims are not complex, nor are the legal arguments regarding
those claims. Further, while Plaintiff contends he has a
language barrier preventing him from litigating his case, the
court notes that Plaintiff has been able to file several
clear and well-written pleadings, motions, declarations, and
briefs with the court, indicating his basic ability to
present his claims. Thus, Plaintiff's request for the
appointment of counsel will be denied without prejudice to
reassertion. See Phillips v. Jasper Cty. Jail, 437 F.3d
791, 794 (8th Cir. 2006) (there is no constitutional or
statutory right to appointed counsel in civil cases, and
28 U.S.C. § 1915(e) says court
“may” appoint counsel; “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”); Ward v. Smith, 721 F.3d 940, 943 (8th
Cir. 2013) (district court did not abuse its
“considerable discretion” in denying inmate's
motion for appointment of counsel in § 1983 action
against correctional officers and nurse for excessive force
and deliberate indifference to serious medical need; neither
underlying facts nor legal arguments were so complex as to
require appointment of counsel, and defendant's
well-written filings with court indicated his basic ability
to state claims); Trotter v. Lawson, 636 F. App'x
371, 373 (8th Cir. 2016) (unpublished) (appointed
counsel may not be warranted early in proceedings and when it
is not clear that plaintiff has difficulty in obtaining and
presenting admissible evidence and lacks skills to present
case to jury); Davis v. Scott, 94 F.3d 444, 447 (8th Cir.
1996) (“Indigent 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[.]” (internal citation and quotation marks
THEREFORE ORDERED that:
Defendants' Motion for Extension of Time to Respond to
Motion for Discovery (Filing No. 50) is GRANTED, and
Defendants shall submit their responses and objections to
Plaintiff's Motion for Discovery (Filing No. 41)
on or before August 11, 2017.
Defendants' Motion to Stay Discovery and Further
Proceedings (Filing No. 51) is GRANTED. Discovery is
stayed until further order of the court. This means that
Defendants are not required to respond to Filing No.
47, Plaintiff's Interrogatories and Requests for
Admissions, and Plaintiff is not authorized to serve any
additional discovery requests, unless and until the court
enters an order lifting the stay.
Plaintiff is not prohibited from filing a properly supported
motion to obtain court approval to conduct limited discovery
regarding issues raised by Defendants once they file their