Dowty v. Tarrell

Full title: EARL D. DOWTY, Plaintiff, v. SHERIFF JEFF TARRELL, FALL RIVER COUNTY, and…

Court: United States District Court, D. South Dakota, Western Division

Date published: May 27, 2005

CIV. 04-5028-KES (D.S.D. May. 27, 2005)

Opinion

CIV. 04-5028-KES.

May 27, 2005

ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER

KAREN E. SCHREIER, District Judge

Plaintiff, Earl Dowty, sued defendants for alleged violations of the Eighth Amendment and for negligence. He sought $2 million in damages. Dowty urges the court to reconsider its order granting summary judgment to defendants and denying summary judgment to Dowty. Dowty alleges he was denied due process because the court denied his motion to appoint counsel. After careful consideration, Dowty's motion to reconsider is denied.

BACKGROUND

While Dowty was incarcerated at the Fall River County Jail, in Hot Springs, South Dakota, he allegedly slipped while taking a shower and injured his back. Dowty alleged that he requested emergency care and that it was denied for four days. He alleges that the jailer, Janet Mallard, told him to make a formal request for emergency care. Dowty alleged that he had constant back pain from the fall and lack of medical care.

The court granted summary judgment to defendants on the Eighth Amendment claim because Dowty could not show that prison officials were "deliberately indifferent to the inmate's serious medical needs." See Coleman v. Rahija, 114 F.3d 778, 784 (8^th Cir. 1997). Nor could he show that he had an objectively serious medical condition and that defendants knew of and disregarded that need. See id. There was no evidence that Dowty suffered any symptom of trauma that would make it obvious he needed medical attention and Dowty did not request painkillers at any time during the four days he waited to see the doctor. Dowty's medical records show no significant change in the condition of his back after the alleged fall, and there was no evidence that the delay in treatment had any effect on his health. Finally, the court granted defendants' motion for summary judgment on the negligence claim because Dowty did not allege any facts that would preclude application of the sovereign immunity doctrine.

DISCUSSION

The Federal Rules of Civil Procedure do not mention motions to reconsider. The Eighth Circuit has instructed courts to consider such motions either under Rule 59(e) or Rule 60(b). Broadway v. Norris, 193 F.3d 987, 989 (8^th Cir. 1999). Only Rule 60(b) applies to a motion filed in response to an order. Id. Rule 60(b) permits a party to file a motion for relief from a final judgment or order for mistake, inadvertence, surprise, excusable neglect, or other reasons. Wilburn v. Pepsi-Cola Bottling Co. of St. Louis, 492 F.2d 1288, 1290 (8^th Cir. 1974). See 6 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 1489 (2d ed. 1990). "Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances." Reyher v. Champion Int'l Corp., 975 F.2d 483, 488 (8^th Cir. 1992). Such motions are disfavored. Rosebud Sioux Tribe v. A P Steel, Inc., 733 F.2d 509, 515 (8^th Cir. 1984).

Dowty alleges that he was denied due process of law when the court denied his request for appointed counsel. He contends that the United States Attorney is required to provide legal services to Indians (Dowty is an enrolled member of the Oglala Sioux Indian Tribe). 25 U.S.C. § 175 provides that "In all States and Territories where there are reservations or allotted Indians the United States attorney shall represent them in all suits at law and in equity."

Legislative history indicates that the statute was meant to apply to disputes relating to public lands. Rincon Band of Mission Indians v. Escondido Mutual Water Co., 459 F.2d 1082, 1084 (9^th Cir. 1972) (citing United States v. Gila River Pima-Maricopa Indian Comm., 391 F.2d 53, 56 (9^th Cir. 1968). Section 175 is the last sentence of an entire paragraph enacted on March 3, 1893, ch. 209, § 1, 27 Stat. 631. Rincon Band, 459 F.2d at 1084. The original statute read:

An act making appropriations for current and contingent expenses, and fulfilling treaty stipulations with Indian tribes, for fiscal year ending June thirtieth, eighteen hundred and ninety four. To enable the Secretary of the Interior, in his discretion, to pay the legal costs incurred by Indians in contests initiated by or against them, to any entry, filing or other claims, under the laws of Congress relating to public lands, for any sufficient cause affecting the legality or validity of the entry . . . In all states and Territories where there are reservations or allotted Indians the United States District Attorney shall represent them in all suits at law and in equity.

Id. The only change is that in the present code, "United States District Attorney" has been replaced by the phrase "United States Attorney." Id. Because this was a case involving alleged violations of the Eighth Amendment and alleged negligence by prison officials, this statute does not apply.

While the court may appoint counsel in its discretion, there is no constitutional or statutory right for an indigent person to have appointed counsel in a civil case. Stevens v. Redwing, 146 F.3d 538, 546 (8^th Cir. 1998). Dowty has not alleged any facts that would support a finding that there are extraordinary circumstances to justify granting relief from judgment. See Reyher, 975 F.2d at 488. Accordingly, it is hereby

ORDERED that Dowty's motion to reconsider the grant of summary judgment to defendants is denied.