Hines v. Kaemingk et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NICHOLAS STEWART HINES,
Plaintiff,
vs.
DENNIS KAEMINGK, SECRETARY OF
CORRECTIONS; OFFICIAL CAPACITY;
INDIVIDUAL CAPACITY; DARIN YOUNG,
WARDEN, SOUTH DAKOTA STATE
PENITENTIARY; OFFICIAL CAPACITY;
INDIVIDUAL CAPACITY; CODY HANSON,
UNIT/CASE MANAGER, SDSP; OFFICIAL
CAPACITY; INDIVIDUAL CAPACITY;
MELISSA MATURAN, ADMINISTRATIVE
REMEDY COORDINATOR, SDSP; OFFICIAL
CAPACITY; INDIVIDUAL CAPACITY;
JODY JOHNSON, YANKTON COUNTY
CLERK OF COURTS; IN BOTH OFFICIAL
AND INDIVIDUAL CAPACITIES;
BRANDON LABRIE, UNIT/CASE
MANAGER & UNIT/COORDINATOR
SDSP; IN BOTH OFFICIAL AND
INDIVIDUAL CAPACITIES; JANE OR JOHN
DOE, IN BOTH INDIVIAUL AND OFFICIAL
CAPACITIES; YANKTON COUNTY, IN
BOTH INDIVIDUAL AND OFFICIAL
CAPACITIES; AND TODD BRANDT,
YANKTON POLICE DETECTIVE; IN BOTH
OFFICIAL AND INDIVIDUAL CAPACITY;
Defendants.
4:19-CV-04108-LLP
1915A SCREENING ORDER
Plaintiff, Nicholas Stewart Hines, filed a pro se civil rights lawsuit under 42 U.S.C.
§ 1983. Doc. 1. This Court dismissed Hines’s Complaint after a 28 U.S.C. § 1915A screening and
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later granted Hines leave to file an Amended Complaint. Docs. 24, 26. Now, this Court must
screen Hines’s “Amended Verified Complaint” (Doc. 27).
I. 	1915A Screening
A. 	Factual Background
Hines plead guilty to first-degree manslaughter for the shooting and killing of his
girlfriend. The plea was entered in the circuit court of Yankton County, South Dakota. Hines
asserts that the alleged violations started in 2012 and are still ongoing. See Doc. 27 at 18. Hines
claims that the defendants have “ ‘acted under color of law’ or the ‘policy of the State,’ regarding
the enforcement, manipulation or changing of his criminal judgment and obligations without
notice, Plaintiff has been repeatedly denied access to records related to his Judg[]ment of
Conviction.” Id. at 20. He alleges that the documents show that he owes over nine million dollars
and the amount is labeled as restitution. Id. at 23. Hines claims that his direct appeal and
post-conviction legal claims have been impeded by defendants’ alleged actions. See id. at 22, 28.
Hines claims he has interacted with individuals employed at the South Dakota State
Penitentiary and has questioned them about his monthly account statement that shows he owes
the restitution amount. Id. at 23-24. He claims that Unit Manager Labrie even called the Yankton
County Clerk of Courts to try to figure out why the restitution amount was so high and an
unknown individual on the phone allegedly said that the ten million dollar restitution amount was
related to Hines’s bond amount before he was criminally convicted and that “ ‘once you are
convicted they make the [bond] amount high so you [Plaintiff] can’t pay it.’ ” Id. at 24
(alternations in original). Hines claims he and several attorneys have contacted the Yankton
County Clerk of Courts multiple times and have never been sent a response to their requests. Id.
at 22-24. In 2017, Yankton Police Detective Todd Brandt allegedly asked Hines to send him a
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notarized letter giving him authority to release the car to another person. Id. Hines allegedly
responded to Brandt that the car should not be release and told his then habeas counsel that the
contents of the car “ ‘could be extremely useful[.]’ ” Id. at 29.
He separates his “Amended Verified Complaint” into two issues: (1) the concealment of
his documents and (2) the post-conviction due process issues. Id. at 15, 29. Hines claims that
defendants’ alleged actions violate the First, Fifth, Sixth, Eighth, Ninth, and Fourteenth
Amendments. See Doc. 27. Hines also claims that the defendants’ alleged actions have violated
various state laws and constitutional provisions of the state of South Dakota. Id. Hines seeks
monetary and injunctive relief. Id. at 33-34.
B. 	Legal Background and Analysis
The court must assume as true all facts well pleaded in the complaint. Estate of
Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and pro se
complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bediako v.
Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, “a pro se
complaint must contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App'x 502, 504 (8th Cir. 2013).
Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir.
1993); Parker v. Porter, 221 F. App'x 481, 482 (8th Cir. 2007).
A complaint “does not need detailed factual allegations . . . [but] requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does not contain these bare
essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does not contain these bare essentials,
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dismissal is appropriate. Beavers,755 F.2d at 663. Bell Atlantic requires that a complaint’s
factual allegations must be “enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true.” Id. at 555; see also Abdullah v.
Minnesota, 261 Fed. Appx. 926, 927 (8th Cir. 2008) (citing Bell Atlantic noting complaint must
contain either direct or inferential allegations regarding all material elements necessary to sustain
recovery under some viable legal theory).
Under 28 U.S.C. § 1915A, the court must screen prisoner complaints and dismiss them if
they are “(1) frivolous, malicious, or fail[] to state a claim upon which relief may be granted; or
(2) seek[] monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b).
1. 	Official Capacity Claims
Hines’s “Amended Verified Complaint,” Doc. 27, names defendants in their individual
and official capacities. Doc. 27 at 2-3, 14. Hines sues Dennis Kaemingk, Darin Young, Cody
Hanson, Melissa Maturan, and Brandon Labrie (hereinafter referred to as the South Dakota
Department of Corrections (SDDOC) defendants). Id. at 2-3, 14. These defendants are listed as
employees of the SDDOC. Id. The Supreme Court has stated, “a suit against a state official in his
or her official capacity is not a suit against the official but rather is a suit against the official’s
office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469
U.S. 464, 471 (1985)). Hines seeks monetary damages from the defendants. Doc. 27 at 33-34.
The Eleventh Amendment generally acts as a bar to suits against a state for money damages
unless the state has waived its sovereign immunity. Will, 491 U.S. at 71. But when an official
capacity claim is asserted for injunctive relief against a state officer, the defense of qualified
immunity does not apply. See Pearson v. Callahan, 555 U.S. 223, 242-43 (2009)
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Because the state of South Dakota has not waived its sovereign immunity and because
Hines seeks monetary damages, all claims against defendants Kaemingk, Young, Hanson,
Maturan, and Labrie in their official capacities for monetary damages are dismissed under 28
U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1). However, Hines’s claims against Kaemingk,
Young, Hanson, Matruan, and Labrie in their official capacities for injunctive relief at this point
would remain but for the analysis that follows determining that none of the underlying claims
concerning these defendants would survive review.
Hines also sues Yankton County, Jody Johnson (Yankton County Clerk of Court), Todd
Brandt (Yankton County Police Detective), and Jane/John Doe(s) (employed by Yankton
County) in their individual and official capacities. Doc. 27 at 14. Claims against Brandt, Johnson
and Doe(s) in their official capacities are the equivalent of a lawsuit against Yankton County. See
Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). A municipal government
may only be sued “when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy,”
deprives a plaintiff of a federal right. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978).
Hines does not allege that Yankton County has unconstitutional policies or customs, nor what
they are, thus his claims against Brandt, Johnson, and Doe(s) in their official capacities, and his
claims against Yankton County are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and
1915A(b)(1).
2. 	Individual Capacity Claims
Hines claims that the alleged violations have been occurring since 2012 and raises claims
under the First, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments. Doc. 27 at 15.
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a. 	First Amendment
i. 	Access to the Courts
Hines claims that his First Amendment right to access the courts has been violated by the
defendants. Doc. 27 at 31. “The Constitution guarantees prisoners a right to access the courts.”
White v. Kautzky, 494 F.3d 677, 679 (8th Cir. 2007). To succeed on a claim for denial of access
to the courts, a plaintiff must show that he suffered actual injury as a result of the defendants’
actions. Lewis, 518 U.S. at 347. In order to satisfy the actual injury requirement, a plaintiff must
“demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.”
Johnson v. Missouri, 142 F.3d 1087, 1089 (8th Cir. 1998) (quoting Lewis v. Casey, 518 U.S. 343,
353 (1996)).
Here, Hines claims that “[d]ue to the actions and inactions of the Defendants, the
Plaintiff’s appellate processes have been greatly impeded by the concealment [of the court
documents.]” Id. at 28. Although Hines refers to the defendants collectively, his alleged facts
state that the SDDOC defendants tried to contact the Yankton County Clerk of Courts to help
Hines find out why the restitution amount was so high. Id. at 21, 22, 23, 24, 26. Hines claims that
defendants impeded his efforts on appeal but he also asserts facts that the SDDOC defendants
actually tried to aid in his retrieval of the information he was asking Yankton County for, thus,
his access to the courts claims against the SDDOC defendants is dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Next, the only facts asserted against Brandt, a Yankton Police Detective are regarding
Hines’s impounded car during a criminal investigation. Id. at 19. Brandt allegedly asked Hines to
send him a notarized letter giving him authority to release the car to another person. Id. Hines
claims that he sent a letter to Brandt and stated that the car should not be released. Id. at 29. He
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claims he told his then habeas counsel that the contents of the car “ ‘could be extremely
useful[.]’ ” Id. Here, Hines fails to assert facts that support that a non-frivolous legal claim was
frustrated or impeded by Brandt. He merely asserts that the contents of the car “could be” useful
and Brandt’s letter about the impounded car came on May 1, 2017 (almost five years after Hines
judgment was entered in his underlying criminal offense on June 7, 2012). Id. at 19. Hines has
not alleged sufficient facts against Brandt to support an access to the courts claim. Accordingly,
his access to the courts claim against Brandt is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1).
Hines claim that he has personally written and asked the Jane/John Doe(s) employed by
the Yankton County Clerk of Courts Office and Johnson for documentation about the restitution
he owed and not merely the Judgment of Conviction. Id. at 22-24. He asserts that he has not
received a response from the Jane/John Doe(s) or from Johnson. Id. Hines claims that his direct
appeal and post-conviction collateral review have been impeded. Id. at 29. Hines does not allege
sufficient facts to show how a non-frivolous legal claim has been impeded and also asserts that
he is not challenging the amount of restitution. See Doc. 27 at 33. He merely states a conclusion
that his appeal and post-conviction review has been impeded, and a recitation of the elements for
a cause of action is insufficient by itself to state a claim. See Twombly, 550 U.S. at 555. Thus,
Hines’s First Amendment access to the courts claim against Jane/John Doe(s) and Johnson is
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
ii. 	Public Access to Records
Hines mentions his right of “access to a judicial document” and his right to information and
material has been violated. Doc. 27 at 32. The Supreme Court has recognized a First Amendment
and common law right of public access to court proceedings and records. See, e.g.,
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Enterprise Co. v. Superior Court, 478 U.S. 1, 12 (1986); Nixon v. Warner Commc'ns, Inc., 435
U.S. 589, 598 (1978). Here, Hines claims that the Jane/John Doe(s) and Johnson have violated his
First Amendment right to access his court record because they have failed to give him proof of
why his restitution order changed. Doc. 27 at 22, 27. He also claims defendants have concealed
and changed his court documents. Id. Thus, Hines has alleged sufficient facts that his First
Amendment right to access judicial records has been violated by the Jane/John Doe(s) and Johnson
and his claim survives 28 U.S.C. § 1915A screening.
Section “1983 liability requires personal involvement in or direct responsibility for actions
resulting in [the] violation.” Carter v. Hassell, 316 Fed. App'x 525, 525 (8th Cir. 2008) (citing
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985)); see also Marchant v. City of Little Rock,
Ark., 741 F.2d 201, 204 (8th Cir. 1984) (dismissing a claim because the individual "had no
knowledge or connection to" the alleged violation); Mark v. Nix, 983 F.2d 138, 139-40 (8th Cir.
1993) (dismissing a § 1983 case where a prisoner claimed that prison officials inappropriately took
away his rosary because "none of the prison officials sued by him [were] responsible for this
confiscation"). Hines does not assert facts to support that Brandt and the SDDOC defendants were
personally involved in denying him access to his judicial records, thus, this claim against them is
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
b. 	Fourteenth Amendment
i. 	Equal Protection
Hines vaguely references the Fourteenth Amendment equal protection clause. Doc. 27 at
15, 32, 33. The equal protection clause of the Fourteenth Amendment requires the government to
“treat similarly situated people alike,” a protection that applies to prisoners. Murphy v. Mo. Dept.
of Corr., 372 F.3d 979, 984 (8th Cir. 2004) (internal quotation omitted). To allege an equal
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protection violation, Hines must show: (1) he is treated differently than a similarly situated class
of inmates, (2) the different treatment burdens a fundamental right, and (3) there is no rational
relation to any legitimate penal interest. Id. (citing Weiler v. Purkett, 137 F.3d 1041, 1051 (8th
Cir. 1998)). The Eighth Circuit explained for a prisoner to prevail on an equal protection claim,
he "must show that he is treated differently from similarly-situated inmates and that the different
treatment is based upon either a suspect classification or a fundamental right." Patel v. U.S.
Bureau of Prisons, 515 F.3d 807, 815 (8th Cir. 2008) (internal quotation omitted). “Suspect
classifications include those such as race, alienage, gender, or national origin.” Knapp v. Hanson,
183 F.3d 786, 790 (8th Cir. 1999) (citing City of Celburn v. Cleburne Living Ctr., 473 U.S. 432,
440 (1985)). Hines has not alleged sufficient facts to show that the alleged treatment is based
upon a suspect classification or a fundamental right., he merely asserts that he is being treated
differently and uses legal conclusions to support his assertion. See Doc. 27, 32, 33. Thus, Hines’s
equal protection claims against defendants are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1).
ii. 	Procedural Due Process
Liberally construing Hines’s facts, he has alleged that his property (the court documents
and his car) have been taken or kept from him without due process. See Doc. 27 at 29, 32. If
there is an adequate postdeprivation remedy, then there is no due process violation for even the
intentional deprivation of a prisoner’s property. Hudson v. Palmer, 468 U.S. 517, 533 (1984).
Because state law provided the prisoner in Hudson with adequate state remedies after the
deprivation of his property, the Court held that no due process violation occurred in that case. Id.
at 535. Here, SDCL § 21-3-3 provides an adequate postdeprivation remedy. This statute
provides a cause of action for wrongful conversion of personal property. See SDCL § 21-3-3.
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Section 21-3-3 provides a description of the damages available for conversion, but the tort of
conversion is a common law tort not defined in the statute. Rensch v. Riddle's Diamonds of
Rapid City, Inc., 393 N.W.2d 269, 271 (S.D. 1986). “Conversion is the unauthorized exercise of
control or dominion over personal property in a way that repudiates an owner’s right in the
property or in a manner inconsistent with such right.” Chem-Age Indus., Inc. v. Glover, 652
N.W.2d 756, 766 (S.D. 2002). The common law and SDCL § 21-3-3 provide Hines with an
adequate postdeprivation remedy for the conversion of his property. Thus, there is no procedural
due process violation. Hudson, 468 U.S. at 535. Hines’s procedural due process claims against
defendants are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
iii. 	Substantive Due Process
. 	Hines’s alleges that the concealment of his court-financial obligations and the changes
made to these documents constitutes a violation of the Fourteenth Amendment substantive due
process clause. Docket 27 at 15, 31. For conduct to amount to a substantive due process
violation the plaintiff must allege facts to show that the state actor’s conduct was egregious,
arbitrary, or conscience shocking. County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)
(citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992)). The court must look at
the circumstances to determine whether the abuse of power is conscience shocking. Id. at 850,
852-54 (explaining that the court should look at whether the state actor had to make the decision
instantly or if the actor had time to deliberate and then choose).
Here, Hines claims that the defendants have altered and concealed his financial
obligations and the amount in question is over nine-million-dollars. See Doc. 27. Hines alleges
facts that show the SDDOC defendants actually tried to help him find out what the documents
meant and the changes applied to them by calling the Yankton County Clerk of Courts on
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different occasions and he fails to allege facts that would support a prima facie case against
Officer Brandt or SDDOC defendants in this regard. He alleges that the Jane/John Doe(s) and
Johnson have been concealing these records since 2012. Id. At this point, Hines has alleged
sufficient facts to support that the Jane/John Doe(s) and Johnson’s alleged actions are egregious
and an abuse of power that equate to shocking the conscience. Accordingly, Hines’s substantive
due process claim against the Jane/John Doe(s) and Johnson survive 28 U.S.C. § 1915A review.
However, his substantive due process claims against the SDDOC defendants and Brandt are
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
c. 	Fifth Amendment
Hines claims that defendants have violated the equal protection and due process clauses of
the Fifth Amendment. Doc. 27 at 32-33. The Due Process Clause of the Fifth Amendment applies
to the United States, whereas the Due Process Clause of the Fourteenth Amendment applies to the
States. Dusenbery v. United States, 534 U.S. 161, 167 (2002). Defendants are state or county
employees. 	Therefore, 	Hines’s 	due process 	and 	equal 	protection 	claims 	under 	the 	Fifth
Amendment are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Although Hines alleges that “nothing herein this Complaint should be construed as a
request for relief from [his] criminal judgment” he mentions the double jeopardy clause and
claims he has been parties to lawsuits that he should not have been included in. See Doc. 27 at
28, 33. These allegations (regarding double jeopardy), if proven, would undermine the validity of
Hines’s conviction. Under the Heck doctrine “in order to recover damages for [an] allegedly
unconstitutional conviction or . . . for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid” a plaintiff must show that the “conviction or sentence [was]
reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.” Heck v.
Humphrey. 512 U.S. 477, 486-87, 489 (1994). Hines has not claimed that his conviction has been
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reversed, expunged, declared invalid or impugned by the granting of a writ. Thus, Hines’s double
jeopardy claims are barred by Heck and dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
d. 	Sixth Amendment
Hines vaguely references the Sixth Amendment and that he has been denied “reasonably
effective, adequate and meaningful legal assistance[.]” Doc. 27 at 15. A finding by this Court that
Hines was denied effective counsel would also undermine the validity of his underlying state
conviction and is barred by Heck. Hines’s Sixth Amendment claim against the defendants is
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
e. 	Eighth Amendment
Hines mentions the Eighth Amendment and his right to be free from cruel and
unusual punishment. Doc. 27 at 15, 33. Hines asserts that he:
is not claiming within this suit that the $9,999,999.99 restitution order itself violates
the Plaintiff’s Eighth Amendment Constitutional Rights, but that if restitution was
continuing to be implemented upon the Plaintiff after said restitution was changed,
that circumstance would implement the Eighth Amendment. Additionally, the act
of concealing the $9,999,999.99 restitution order while the Plaintiff did still owe it,
wrongfully exposing Plaintiff needlessly to [a] Wrongful Death Suit Civ. 13-135,
also violated the Plaintiff’s Eighth Amendment Constitutional right to be free from
punishment that is cruel and unusual.
Id. at 33. “The Eighth Amendment provides, ‘[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.’ ” Mills v. City of
Grand Forks, 614 F.3d 495, 501 (8th Cir. 2010) (quoting U.S. Const. amend. VIII, § 1).
Because Hines’s clearly states he is not challenging the nine-million-dollar restitution order
this Court will not address the excessive fines clause under the Eighth Amendment.
Further, even with liberal construction Hines’s facts do not show that the defendants’
alleged actions have resulted "in the denial of the minimal civilized measure of life's
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necessities" and that prison officials were deliberately indifferent to "an excessive risk to
inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation
omitted). Thus, Hines’s Eighth Amendment claims against defendants are dismissed under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
f. 	Ninth Amendment
Hines claims that the defendants have violated the Ninth Amendment. Doc. 27 at 15.
“[T}he Ninth Amendment does not create substantive rights beyond those conferred by
governing law,” Gaslin v. Fassler, 377 Fed. Appx. 579, 580 (8th Cir. 2010) (citing see Martinez-
Rivera v. Sanchez Ramos, 498 F.3d 3, 9 (1st Cir. 2007). Thus, Hines’s claims under the Ninth
Amendment fail to state a claim upon which relief can be granted and are dismissed under 28
U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
II. 	Motion for the Appointment of Counsel
Hines moves for appointment of counsel. Doc. 29. He asserts that his claims are
meritorious, and that he has already had issues presenting his claims to this Court. Id. at 3.
Further, Hines claims he has contacted attorneys to represent him on the matter and they are
either busy or they do not “correctly understand the issue.” Id. “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). Under 28 U.S.C. § 1915(e)(1) “[t]he court may request an attorney to
represent any person unable to afford counsel. 28 U.S.C. § 1915(e)(1). District courts may
appoint counsel and the Eighth Circuit has acknowledged the “express authority of the district
court to make such appointments.” Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004
(8th Cir. 1984); White v. Walsh, 649 F.2d 560, 563 (8th Cir. 1981). “The appointment of counsel
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should be given serious consideration by the district court if the plaintiff has not alleged a
frivolous or malicious claim.” Nelson, 728 F.2d at 1003.
When determining whether to appoint counsel to a pro se litigant, the court will look at the
factual and legal complexity of the claims. In King v. Patterson, the Eighth Circuit held that the
district court did not err in denying a prisoner’s motion for appointment of counsel. 999 F.2d 351,
353 (8th Cir. 1993). In King, the plaintiff alleged one incident of excessive force by prisoner
personal. Id. The Eighth Circuit reasoned that the denial of the plaintiff’s motion for appointment
of counsel was appropriate “[b]ecause this case was neither factually nor legally, complex, the
complaint alleged a single incident of excessive force, and the Court held that King had clearly
communicated his concerns and could adequately present the facts of his case to the Court.” Id.
Factual complexity is not the only factor that a district court considers whether appointment
of counsel is appropriate. Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986) (citing Maclin
v. Freake , 650 F.2d 885, 888 (7th Cir. 1981)). The Eighth Circuit considers “the factual
complexity of the case, the ability of the indigent to investigate the facts, the existence of
conflicting testimony, the ability of the indigent to present his claim and the complexity of the
legal issues.” Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (citing Johnson, 788 F.2d
at 1322-23.). Hines’s “Amended Verified Complaint” shows that he is able to communicate his
concerns and has adequately presented them to this Court. Because Hines’s claims are not legally
nor factually complex and because he can clearly and adequately present his facts and claims to
this Court his motion for appointment of counsel, Doc. 27, is denied. The Court remains open to
the possibility of appointing counsel if this case proceeds beyond the motion stage. It is one thing
to well represent one’s position on paper to the court, and it is yet another to be able to adequately
try a case to a jury. Accordingly, it is ORDERED:
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1. 	That Hines’s motion for appointment of counsel, Doc. 29, is denied.
2. 	That all claims against defendants Kaemingk, Young, Hanson, Maturan, Labrie,
Yankton County, and Brandt in their individual and official capacities are
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
3. 	That Hines’s claims against Johnson and Doe(s) in their official capacities are
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
4. 	That Hines’s First Amendment claim (public access to judicial records) and
Fourteenth Amendment claim (substantive due process) against Johnson and
Doe(s) in their individual capacities survive 28 U.S.C. § 1915A screening. At this
time, the Court denies supplemental jurisdiction for Hines’s state law claims
under 28 U.S.C. § 1367, as they are vague.
5. 	That all other claims are dismissed under 28 U.S.C. § 1915(e)(2)(B)(i-ii) and
1915A(b)(1).
6. 	The Clerk shall send blank summons forms and Marshal Service Form (Form
USM-285) to Hines so that he may cause the complaint to be served upon
defendants (Johnson and Doe(s)).
7. 	Hines shall complete and send the Clerk of Courts a separate summons and USM-
285 form for defendant Johnson. Upon receipt of the completed summons and
USM-285 forms, the Clerk of Court will issue the summons. If the completed
summons and USM-285 form are not submitted as directed, the complaint may be
dismissed.
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8. 	The United States Marshal Service shall serve the completed summonses,
together with a copy of the “Amended Verified Complaint” (Doc. 27) and this
order, upon defendant Johnson.
9. 	Johnson will serve and file an answer or responsive pleading to the amended
complaints and supplement on or before 21 days following the date of service or
60 days if the defendant falls under Fed. R. Civ. P. 12(a)(2) or (3).
10. 	Hines will keep the court informed of his current address at all times. All parties
are bound by the Federal Rules of Civil Procedure and by the court’s Local Rules
while this case is pending.
BY THE COURT:
________________________________
Lawrence L. Piersol
United States District Judge
DATED September 3, 2020.
ATTEST:
MATTHEW W. THELEN, CLERK
_________________________
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