Opinion
Case No. 02-3238-JAR
February 6, 2004
MEMORANDUM ORDER AND OPINION
Gregory Hill, an inmate at Greenville FCI in Greenville, Illinois, brings suit against Corrections Corporation of America ("CCA") and its officials under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, alleging that defendants used excessive force against him while he was a federal pretrial detainee in a CCA facility in Leavenworth, Kansas. This matter comes before the Court on 1) plaintiff Gregory Hill's Motion for Appointment of Counsel and Request to Amend Scheduling order (Doc. 24) and 2) plaintiff's Motion for Authorization to Obtain Eye Specialist at Court's Expense (Doc. 25). For the reasons set forth below, plaintiff's motions are denied.
403 U.S. 388(1971).
1. Appointment of counsel
Plaintiff is proceeding in forma pauperis and requests that the Court appoint counsel to represent him in this proceeding. Under 28 U.S.C. § 1915, the Court has discretion to appoint counsel for such a plaintiff. In deciding this motion, the Court must "give careful consideration to all the circumstances with particular emphasis upon certain factors that are highly relevant to a request for counsel." These factors include: l)the merits of the plaintiff's claims; 2)the nature of the factual issues raised in the claims; 3) the plaintiff's ability to present his claims; and 4) the complexity of the legal issues raised by the claims.
Lile v. Simmons, 143 F. Supp.2d 1267, 1277 (D. Kan. 2001) (citing Miller v. Glanz, 948 F.2d 1562, 1570 (10th Cir. 1991) (citations omitted)).
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
Rucks, 57 F.3d 978, 979 (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)).
The Court notes that plaintiff's claim does not present difficult factual or legal issues and plaintiff has adequately represented his claim. Accordingly, the Court is unpersuaded that the interests of justice warrant appointment of counsel, at least at this time. The Court also denies plaintiff's alternative request that fellow inmate paralegal Anthony King accompany him to any depositions. Plaintiff makes no showing that such assistance is appropriate or warranted in this matter.
2. Scheduling order
Plaintiff requests that the Court's Scheduling Order (Doc. 20) be amended to increase the number of depositions from five (5) to 15 for each party. In support of his request, plaintiff contends that there are nine (9) witnesses to the incident and 20 witnesses who treated him for his injuries, three of whom he wishes to depose. Plaintiff has not established the need to depose every potential witness, but the Court will grant his request, and increase the number of depositions to 10 per party. 3. Eye examination
Plaintiff requests the Court to authorize him to obtain an eye specialist at the Court's expense in accordance with Fed.R.Civ.P. 35. Plaintiff contends that there is no eye specialist at the FCI medical center and that no specialist will see him without guarantee of payment for his services. Plaintiff's exhibits indicate that he has been examined by prison medical staff on several occasions and has been prescribed eyeglasses. Exhibit three indicates that plaintiff suffered damage from the pepper spray and that he has broken capillaries in the whites of his eyes. Plaintiff's motion states that he is merely requesting confirmation of the previous diagnosis by the prison medical staff by a specialist.
Plaintiff's request is not within the scope of Rule 35(a), which provides that a court may order a party to submit to a physical or mental examination when the physical or mental condition of a party is in controversy, and on good cause shown. The Court notes that the rule contemplates examination of a plaintiff by a medical examiner of defendant's designation. Moreover, although plaintiff's physical condition is "in controversy," he has not established "good cause" for examination by a specialist. Plaintiff's request is denied.
IT IS THEREFORE ORDERED that plaintiff's Motion for Appointment of Counsel (Doc. 24) is DENIED without prejudice;
IT IS FURTHER ORDERED that plaintiff's Request to Amend Scheduling Order (Doc. 24) is GRANTED IN PART.
IT IS FURTHER ORDERED that plaintiff's Motion for Authorization to Obtain Eye Specialist is DENIED.