Brakeall v. Kaemingk et al, No. 4:2016cv04057 - Document 184 (D.S.D. 2019)
Court Description: ORDER denying 117 Motion to Appoint Counsel ; denying 130 Motion to Appoint Counsel ; denying 133 Motion for Sanctions; denying 139 Motion to Appoint Counsel ; denying 140 Motion to Appoint Counsel ; denying 146 Motion for TRO; denying 151 Motion to Appoint Counsel ; denying 153 . Signed by U.S. District Judge Karen E. Schreier on 8/2/19. Mailed to Plaintiff (SRA)
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.C. § 1983 lawsuit. To the contrary, Devose's motion is based on new assertions of mistreatment that are entirely 5 different from the claim raised and the relief requested in his inadequate medical treatment lawsuit. Although these new assertions might support additional claims against the same prison officials, they cannot provide the basis for a preliminary injunction in this lawsuit. Id. (internal citations omitted). Brakeall’s motions for injunctive relief and temporary restraining order (Dockets 146 and 153) are denied. II. Motion to Appoint Expert Witness Brakeall moves the court to appoint experts in medical diagnosis or pain management, prison staffing, and prison gang activity. Docket 130 at 3. “Federal Rule of Evidence 706 allows the appointment of an expert to aid the Court, and not for the benefit of one of the parties.” Green v. Lake, 2018 WL 4590004, at *2 (D. Minn. Sept. 25, 2018) (internal quotation omitted). Indigent civil litigants are required to bear the costs of their own experts. See Reyna v. Weber, 11-CV-4044, 2012 WL 2999768, at *2 (D.S.D. June 29, 2012). The court has discretion to determine whether an expert is necessary based on the complexity of the case and the need for a neutral expert. See U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1059 (8th Cir. 1984); Leford v. Sullivan, 105 F.3d 354, 358-59 (9th Cir. 1997). The court finds that an expert is not required in this case. The question of whether defendant has violated plaintiff’s Eighth Amendment rights is not so complicated or difficult that experts are required to present or prove the case. Thus, Brakeall’s motion for the appointment of an expert witness (Docket 130) is denied. 6 III. Motion for Sanctions Brakeall moves the court to sanction defendants and their counsel for intentional delays in litigation. Docket 133. As an example, Brakeall points to defendants’ new failure to exhaust argument in their second motion for summary judgment. Id. Brakeall also claims defendants filed their second motion for summary judgment so that the deadline would fall when Brakeall was in Sioux Falls for a trial in a different matter. Id. Defendants responded and argue that they have complied with the scheduling order in this case. Docket 134. Defendants also argue that it is Brakeall’s several extensions that caused any undue delay in this case. Id. at 2. The court is mindful of the challenges inmates face when litigating while incarcerated. The court will consider Brakeall’s response to defendant’s motion for summary judgment. The court does not find that defendants have intentionally delayed litigation and denies Brakeall’s motion for sanctions. IV. Motions to Appoint Counsel Brakeall moves to appoint counsel. Dockets 117, 130, 139, 140, 151. “A pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). In determining whether to appoint counsel to a pro se litigant’s civil case, the district court considers the complexity of the case, the ability of the indigent litigant to investigate the facts, the existence of conflicting testimony, and the indigent's ability to present his claim. Id. Brakeall appears able to 7 adequately present his § 1983 claims at this time. Thus, his motions to appoint counsel are denied. Thus, it is ORDERED: 1. Brakeall’s motions for injunctive relief and temporary restraining order (Dockets 146 and 153) are denied. 2. Brakeall’s motion to appoint an expert (Docket 130) is denied. 3. Brakeall’s motion for sanctions (Docket 133) is denied. 4. Brakeall’s motions to appoint counsel (Dockets 117, 130, 139, 140, 151) are denied. DATED August 2, 2019. BY THE COURT: /s/Karen E. Schreier KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE 8
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