United States District Court, N.D. Iowa, Western Division
LEONARD T. STRAND CHIEF UNITED STATES DISTRICT JUDGE
matter is before me on plaintiff's complaint (Doc. No.
3), filed on February 21, 2017, plaintiff's motion to
appoint counsel (Doc. No. 5), filed on March 17, 2017, and
plaintiff's motion for discovery (Doc. No. 8), filed on
March 31, 2017. Also before the court is the response by the
government (Doc. No. 10), filed on March 31, 2017, the
response by the Woodbury County Jail (Doc. No. 11), filed on
March 31, 2017, and the response by the Sioux City Police
Department and Sioux City Police Officer Zach Lewis (Doc. No.
13), filed on March 31, 2017. Despite those responses and
plaintiff's familiarity with federal court proceedings,
plaintiff opted not to file anything further, which suggests
that he desires to stand on his pleading rather than amend
it. In light of the procedural posture of this case, the
court deems it appropriate to conduct a further review of
APPOINTMENT OF COUNSEL AND DISCOVERY
of counsel is based on multiple factors, including the
complexity of the case, and, although the court does appoint
attorneys in some federal actions, it is not required to
appoint an attorney. See Phillips v. Jasper Cty.
Jail, 437 F.3d 791, 794 (8th Cir. 2006); see also
Taylor v. Dickel, 293 F.3d 427, 428 (8th Cir. 2002)
(discussing 28 U.S.C. § 1915(e)(1)); Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (discussing
denial of appointment of counsel); McCall v. Benson,
114 F.3d 754, 756 (8th Cir. 1997) (same); Davis v.
Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth
factors to be considered for appointment of counsel in civil
case); Plummer v. Grimes, 87 F.3d 1032, 1033 (8th
Cir. 1996) (same); Abdullah v. Gunter, 949 F.2d
1032, 1035 (8th Cir. 1991) (same); Wiggins v.
Sargent, 753 F.2d 663, 668 (8th Cir. 1985) (stating an
indigent litigant enjoys neither a statutory nor a
constitutional right to have counsel appointed in a civil
case). Given the record in this action, the court does not
believe that the assistance of counsel is warranted.
Therefore, plaintiff's motion to appoint counsel shall be
respect to plaintiff's motion for discovery, there is no
reason to conduct discovery at this point in the proceeding
because plaintiff's complaint is deficient in numerous
ways. Accordingly, plaintiff's motion for discovery shall
STANDARD OF REVIEW
se complaint must be liberally construed. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam); Smith v. St.
Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th
Cir. 1994). In addition, unless the facts alleged are clearly
baseless, they must be weighed in favor of plaintiff. See
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A court,
however, can dismiss at any time a complaint filed in forma
pauperis if the complaint is frivolous, malicious, fails to
state a claim on which relief may be granted or seeks
monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b)(1). A claim is “frivolous” if it
“lacks an arguable basis in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989);
accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir.
1994). An action fails to state a claim upon which relief can
be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Accordingly, a court may review the complaint and
dismiss sua sponte those claims that fail “‘to
raise a right to relief above the speculative level. . .
.'”, Parkhurst v. Tabor, 569 F.3d 861, 865
(8th Cir. 2009) (quoting Bell Atl., 550 U.S. at
555), or that are premised on meritless legal theories or
clearly lack any factual basis, see Neitzke, 490
U.S. at 325. See, e.g., Denton, 504 U.S. at
27 (considering frivolousness); Myers v. Vogal, 960
F.2d 750, 751 (8th Cir. 1992) (concluding that a district
court may dismiss an action if an affirmative defense
confined at the Yankton County Jail in Yankton, South Dakota,
plaintiff, proceeding pro se, submitted a complaint to
redress issues that appear to be related to his supervision
while on parole, his arrest pursuant to search warrants on
July 29, 2015, subsequent searches of his smartphone and
laptop pursuant to a search warrant and his confinement for
six months within a police station and then at the Woodbury
County Jail until he no longer faced theft charges because
they were dismissed, assault charges because the jury
acquitted him and his parole hold because criminal charges
were resolved in his favor. Jurisdiction is predicated on 28
U.S.C. § 1343. Under 28 U.S.C. § 1391(b), venue
appears to be proper as the events giving rise to the instant
action occurred in this district and the defendants are
located in this district. As relief, plaintiff states that he
wants to be awarded $33, 000, 000 in damages and a protective
order to prevent further harassment.
Claims Under 42 U.S.C. § 1983
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the