Radford v. Byers

• Court: District Court, E.D. Arkansas
• Decided: October 24, 2023
• Docket: 4:21-cv-00218
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

TOMMY RADFORD PLAINTIFF ADC #089900

V. No. 4:21-CV-218-DPM-JTR

LeMARCUS DAVIS, Former Captain, Maximum Security Unit; JOSHUA CAUDELL, Lieutenant, Maximum Security Unit; TERRI L. MURRAY, Corporal, Maximum Security Unit; QUINTIN WOODS, Former Officer, Maximum Security Unit; JOHNNIE BARTON, Former Officer, Maximum Security Unit; and BREWER, Sergeant, Maximum Security Unit DEFENDANTS

ORDER There are two pending issues in this § 1983 action: (1) Plaintiff Tommy Radford’s request for appointed counsel; and (2) Radford’s “Motion for Leave to Amend Amicus Brief.” Docs. 78–80. I. Radford’s Ninth and Tenth Motions for Counsel Radford has filed his ninth and tenth Motions to Appoint Counsel. Doc. 78; Doc. 80. In determining whether to appoint counsel in a civil case, the Court must weigh and consider the following factors: (1) the factual and legal complexity of the case; (2) the indigent plaintiff’s ability to investigate the facts; (3) the existence of conflicting testimony; and (4) the plaintiff’s ability to present his claims. Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018) (citing Phillips v. Jasper County Jail,

437 F.3d 791, 794 (8th Cir. 2006)). A district court may appoint counsel in a civil case if it is “convinced that an indigent plaintiff has stated a non-frivolous claim…and where the nature of the litigation is such that plaintiff as well as the court

will benefit from the assistance of counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018) (citations omitted). In considering Radford’s previous eight Motions to Appoint Counsel, the Court has repeatedly and carefully weighed the relevant factors and determined that

Radford is not entitled to appointed counsel in this civil action. Docs. 63, 68, 70, 75. In fact, there are only two factors that weigh in Radford’s favor as to his claims against one Defendant: his ability to present and investigate his claims against the

deceased Defendant, Lieutenant Caudell. Radford has been unable to locate the proper party to be substituted for Lieutenant Caudell. In support of his Motions, Radford provides a letter he received from a local criminal attorney which states, “I do not know who is the representative

of Caudell’s estate. I do not know how to find out this information.” Doc. 78 at 3. Here, it does not appear that Radford would benefit from counsel because a local attorney has already indicated that the information needed to pursue claims

against Caudell is not readily available. Additionally, any claim against Caudell would be futile (and thus, frivolous) because it is readily apparent from Radford’s grievance history that he did not exhaust his administrative remedies against

Caudell. See Docs. 45-1 through 45-11. Accordingly, neither the Court nor Radford would benefit from the appointment of counsel in this case, and Radford’s Motions to Appoint Counsel are denied.

II. Radford’s Motion for Leave to Amend Amicus Brief Radford has also filed a “Motion for Leave to Amend Amicus Brief.” Doc. 79. Amicus briefs are to be filed by individuals or organizations that are not parties to the underlying litigation. Miller-Wohl Co. v. Comm'r of Lab. & Indus. State of

Mont., 694 F.2d 203, 204 (9th Cir. 1982) (“An amicus curiae is not a party to litigation.”). As the Plaintiff in this § 1983 action, Radford does not have a right to file an amicus brief on his own behalf. Accordingly, his Motion for Leave to Amend Amicus Brief (Doc. 79) is denied.

III. Conclusion For the foregoing reasons, IT IS ORDERED THAT: 1. Radford’s ninth and tenth Motions for Counsel (Doc. 78; Doc. 80) are DENIED.

2. Radford’s Motion for Leave to Amend Amicus Brief (Doc. 79) is DENIED. SO ORDERED this 24th day of October, 2023.

UNITED STATES MAGIS NRATE JUDGE