# Strutton v. Hacker

> District Court, E.D. Missouri · January 3, 2025

URL: https://www.frixlaw.com/law-library/cases/10774004

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** January 3, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10774004

## How later opinions describe it (automated extraction)

- applying Turner to civil detainees by agreement of the parties
- holding that a modified version of Turner applies to civil detainees that requires assessment of whether the regulation is “reasonably related to legitimate nonpunitive governmental interests”
- holding that statutory provisions enacted to protect minors from indecent and patently offensive communications on the internet violated the First Amendment, notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

)
DENNIS STRUTTON,
)

)
Plaintiff,
)

)
v. Case No. 4:23-CV-01134-SPM
)

)
DENISE HACKER, et al.,
)

)
Defendants.
)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on six motions: Defendant George Killian’s Motion to
Dismiss Plaintiff’s Second Amended Complaint (ECF No. 24); Defendant Denise Hacker’s
Motion to Dismiss Plaintiff’s Second Amended Complaint (ECF No. 31); Plaintiff’s Motion for
Judicial Notice (ECF No. 35), Plaintiff’s Motion for Summary Judgment/Response to Motion to
Dismiss (ECF No. 36), Plaintiff’s Motion for Appointment of Counsel (ECF No. 38), and
Plaintiff’s Motion for His First Request for Documents (ECF No. 39). The motions have been fully
briefed. The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 34). For the following reasons, Defendants’
motions to dismiss will be granted with respect to Plaintiff’s individual capacity claims and denied
with respect to Plaintiffs’ official capacity claims. Each of Plaintiff’s motions will be denied except
to the limited extent set forth below.
I. FACTUAL BACKGROUND1
Plaintiff Dennis Strutton, who is self-represented, has been a civilly committed resident of
the Sex Offender Rehabilitation and Treatment Services Center (“SORTS”) since 2002.2 Although
Plaintiff has never misused the internet, he has been completely denied access to the internet during

the entire time he has been in the SORTS facility. As a result, his ability to research current events
is diminished; his thinking is altered because he is isolated from the world and has very little
information on which to make decisions; he is not allowed to order his own items and is forced to
rely on others; he is pulled backwards as he is behind the technology era; he is restricted from
sharing ideas, thoughts, and other forms of expression; he is restricted from accessing information
that will benefit his personal growth and treatment; he has suffered lasting damage to his treatment;
and his education level is limited.
Plaintiff brings this action under 42 U.S.C. § 1983 against Defendants Denise Hacker
(Chief Operations Officer for SORTS) and George Killian (Director of Treatment Services for
SORTS), in their individual and official capacities. He alleges that Ms. Hacker and Mr. Killian

have failed to provide him with any resources to allow him access to the internet and have refused
to allow Plaintiff access to the internet every time he has tried to obtain access, thereby violating
his rights under the First Amendment. Plaintiff asks the Court to (1) provide all individual SORTS
residents access to the internet; (2) allow all SORTS residents who have no internet-related
offenses to have unlimited access to the internet and social media; (3) provide Plaintiff with a

1 These facts are taken from Plaintiff’s Second Amended Complaint. (ECF No. 12).
2 Under Missouri law, a person who is determined to be a “sexually violent predator” shall be
“committed to the custody of the director of the department of mental health for control, care and
treatment until such time as the person’s mental abnormality has so changed that the person is safe
to be at large.” Mo. Rev. Stat. § 632.495.2.
personal laptop equal to all those in SORTS; and (4) allow Plaintiff a subscription to the Great
Courses, at the State’s expense, for the duration of his stay in SORTS.
On initial review pursuant to 28 U.S.C. § 1915, the Court found that to the extent Plaintiff
intended to assert claims on behalf of other civil detainees, those claims must be stricken for lack

of standing. Mem. & Order, ECF No. 13 (May 2, 2024). However, the Court found Plaintiff had
stated a plausible claim for relief under the First Amendment against Defendants in their individual
capacities and official capacities. Id.
Defendants now, in separate but substantively identical motions, move to dismiss
Plaintiff’s Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim upon which relief may be granted.
II. LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When ruling on a motion to dismiss, the
Court must accept as true all of the factual allegations in the complaint, but it need not accept the
legal conclusions. Iqbal, 556 U.S. at 678. “A claim has facial plausibility when plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Although “detailed factual allegations” are not required, “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. The Court must make “all reasonable inferences in favor of the nonmoving party.”
Usenko v. MEMC LLC, 926 F.3d 468, 472 (8th Cir. 2019).
A complaint filed by a self-represented plaintiff should be “liberally construed” and “held
to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quotation marks omitted). “[I]f the essence of an allegation is discernible . . . then
the district court should construe the complaint in a way that permits the layperson’s claim to be
considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir.

2015) (quotation marks omitted).
III. DISCUSSION
A. Defendants’ Motions to Dismiss
1. Official Capacity Claims
Defendants argue that Plaintiff’s official capacity claims should be dismissed because
Plaintiff is a sexually violent predator and the restrictions on Plaintiff’s First Amendment right to
internet usage are necessary to advance a legitimate reformative purpose of the State. After review,
the Court finds Plaintiff has alleged sufficient facts to state a claim at this stage of the proceedings.
“The right of freedom of speech and press includes not only the right to utter or to print,
but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of

thought, and freedom to teach[.]” Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (citations
omitted). Restrictions on the use of the internet may infringe on an individual’s First Amendment
rights. See Packingham v. North Carolina, 582 U.S. 98, 104-08 (2017) (holding that state statute
prohibiting sex offenders from accessing social networking websites violated the First
Amendment); Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 849 (1997) (holding that statutory
provisions enacted to protect minors from indecent and patently offensive communications on the
internet violated the First Amendment, notwithstanding the legitimacy and importance of the
congressional goal of protecting children from harmful materials).
In the prison context, the Supreme Court has held that “when a prison regulation impinges
on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). To determine whether a regulation
is reasonably related to a legitimate penological purpose, courts consider the following factors: (1)
whether there is a valid, rational connection between the regulation and the legitimate

governmental interest put forward to justify it; (2) whether alternative means of exercising the
right remain open to prison inmates; (3) whether alternative means of exercising their rights remain
open to the prisoners; (3) the impact accommodation of the asserted right will have on guards and
other inmates, and on the allocation of prison resources generally; and (4) whether there is a ready
alternative to the regulation that would fully accommodate the prisoner’s rights at a de minimis
cost to valid penological interests. Id. at 89-91. The Eighth Circuit has recognized that “a Turner
analysis is a fact-intensive inquiry requiring careful examination of the policies and institutions at
issue in each case.” Simpson v. Cnty. of Cape Girardeau, Missouri, 879 F.3d 273, 282 (8th Cir.
2018).
As Plaintiff points out, he is a not a prisoner, but a civil detainee. Although the Court has

found no Eighth Circuit cases addressing the issue, several other courts have applied Turner to
civil detainees. Those courts typically modify the Turner analysis to reflect the fact that the
government’s legitimate interests are different for civil detainees and do not include punishment.
See, e.g. Matherly v. Andrews, 859 F.3d 264, 282 (4th Cir. 2017) (holding that a modified version
of Turner applies to civil detainees that requires assessment of whether the regulation is
“reasonably related to legitimate nonpunitive governmental interests”); Pesci v. Budz, 730 F.3d
1291, 1298 (11th Cir. 2013) (“[T]he government undoubtedly may justify a civil detention
regulation based on its valid, rational connection to legitimate interests in institutional order,
safety, and security and in the rehabilitation and treatment of civil detainees, but it may not justify
a restraint on detainees’ constitutional rights for reasons related to punitive conditions of
confinement.”); Daywitt v. Harpstead, No. 20-CV-1743 (NEB/ECW), 2023 WL 6366610, at *4
(D. Minn. Sept. 29, 2023) (noting that “as far as the Court is aware, every circuit to address the
constitutional validity of a civil commitment program policy has identified Turner as the

appropriate standard”; modifying the Turner analysis to assess the government’s legitimate
nonpunitive interests, including its “legitimate institutional and therapeutic interests”), aff’d, No.
24-1138, 2024 WL 4234951 (8th Cir. Sept. 19, 2024). See also Beaulieu v. Ludeman, 690 F.3d
1017, 1039 (8th Cir. 2012) (applying Turner to civil detainees by agreement of the parties). The
Court agrees with this approach and finds that a modified version of Turner applies in this case.
The regulation at issue is valid if, after application of the Turner factors, the Court can find that it
is reasonably related to the government’s legitimate nonpunitive interests, including its legitimate
institutional and therapeutic interests.
The parties have not cited, and the Court has not found, any binding caselaw addressing
whether, or under what circumstances, a complete restriction on a civil detainee’s right to access

the internet violates the First Amendment. The Court finds instructive Ivey v. Johnston, in which
the court found that allegations similar to those in this case stated a claim under the First
Amendment and survived a challenge under Rule 12(b)(6). No. 18-CV-1429 (PAM/DTS), 2019
WL 3334346, at *6 (D. Minn. July 24, 2019), report and recommendation adopted, No. CV 18-
1429 (PAM/DTS), 2019 WL 3987583 (D. Minn. Aug. 23, 2019). In Ivey, civilly committed
residents of the Minnesota Sex Offender Program (“MSOP”) alleged that the MSOP’s complete
ban on internet use violated their First Amendment rights. Id. at *1. The defendant moved to
dismiss the claim under Rule 12(b)(6). Id. The court noted that “[t]here has never been serious
doubt that the First Amendment extends to speech distributed via the internet” and found that the
plaintiffs had alleged sufficient facts to show that a government actor deprived them of their right
to speech distributed over the internet by alleging that the defendant prohibited all access to the
internet. Id. at *4. It noted that the modified Turner framework applied to claims brought by civil
detainees and stated:

Under this analytical framework, if a plaintiff’s complaint states a
cognizable First Amendment claim, it generally survives a motion to dismiss
despite the plaintiff’s civil commitment status. Applying Turner and determining
the extent of First Amendment rights in the civil commitment context, like its
penological counterpart, “is a fact-intensive universe.” Holloway v. Magness, 666
F.3d 1076, 1079 (8th Cir. 2012). An individual plaintiff’s therapy needs may be
highly relevant to determining whether a policy reasonably relates to a legitimate
interest. As such, courts considering a motion to dismiss an involuntarily
committed individual’s constitutional claim under Rule 12(b)(6) limit their inquiry
to whether the Complaint states a cognizable constitutional claim and leave the
Turner question to be determined upon a properly developed factual record. See
Stone v. Jesson, Civ. No. 11-0951 (WMW/HB), 2017 WL 1050393, at *4 (D. Minn.
Mar. 17, 2017); Pittman v. Jesson, Civ. No. 12-1410 (SRN/TNL), 2014 WL
4954286, at *16 (D. Minn. Sept. 30, 2014) (citing Karsjens [v. Jesson, 6 F. Supp.
3d 916,] 937). At least one court has conducted the modified Turner analysis on a
Rule 12(b)(6) motion. But the court there made it very clear that the plaintiffs had
made sufficient allegations and attached enough material to the complaint that the
court could consider the Turner factors on the pleadings. Semler v. Ludeman, Civ.
No. 09-0732 (ADM/SRN), 2010 WL 145275, at **16 n. 8, 21 n. 9 (D. Minn. Jan.
8, 2010). As noted above, Plaintiffs here have stated a cognizable First Amendment
claim and there is not a sufficient record at this stage for the Court to conclude that
a wholesale restriction on internet access is sufficiently supported by institutional
and therapeutic concerns.

Id. at *6. The court found that the motion to dismiss should be denied and did not conduct an
analysis of the Turner factors, leaving that for a future determination. Id. It distinguished another
district court case considering a challenge to MSOP’s internet ban because that case had been
decided at the summary judgment stage and the court had upheld the constitutionality of the ban
“only after reviewing the evidence, including affidavits, submitted by both parties.” Id.
Other courts have also declined to dismiss civil detainees’ First Amendment claims at the
pleadings stage, noting the difficulty of conducting a full Turner analysis without a more
developed record. See Daywitt v. Harpstead, No. 20-CV-1743 (NEB/KMM), 2021 WL 2210521,
at *3 & n. 7 (D. Minn. June 1, 2021) (denying a motion to dismiss a civilly committed individual’s
First Amendment claim “because Plaintiffs adequately plead allegations that would allow them to
prevail under the modified Turner analysis, and because the modified Turner analysis is fact-

specific and ill-suited to deciding a claim on a motion to dismiss”; distinguishing cases finding no
constitutional violation based on similar facts at the summary judgment stage); Jannetta v.
Minnesota Dep’t of Hum. Servs., No. 19-CV-2622 (ECT/TNL), 2020 WL 3405430, at *7 (D.
Minn. June 1, 2020) (recommending against dismissal of a civilly committed individuals’ First
Amendment challenge to a policy restricting clients’ access to media where “the modified Turner
analysis in this matter is not so obvious from the face of the pleading alone that this Court can
conclude that plaintiffs’ First Amendment claim is not viable”; stating, “[a] more-developed record
is necessary to review properly plaintiffs’ First Amendment claim under the modified Turner
approach”), report and recommendation adopted, No. 19-CV-2622 (ECT/TNL), 2020 WL
3402418 (D. Minn. June 19, 2020); Stone v. Jesson, No. 11-CV-0951 (WMW/HB), 2017 WL

1050393, at *4 (D. Minn. Mar. 17, 2017) (denying motion to dismiss civilly committed
individual’s claim that policy violated his First Amendment right to receive and consume media;
rejecting Defendants’ reliance on a case that had been decided on summary judgment and noting
that “because this case is before the Court on Defendants’ motion to dismiss, there is no record on
which to conduct a Turner analysis”).
As in the cases discussed above, the Court finds that dismissal at the pleadings stage here
is inappropriate because Plaintiff has pleaded a cognizable First Amendment claim and because it
is not obvious from the face of the complaint that Plaintiff’s claim is not viable under the modified
Turner analysis. As discussed above, there is little doubt that a complete restriction on the use of
the internet impinges on Plaintiff’s First Amendment rights. As to the first modified Turner factor,
although the Court acknowledges Defendants’ argument that there appears to be a valid connection
between a restriction on the internet and SORTS’s legitimate interest in reforming Plaintiff as a
sexually violent predator given the widespread sexual content available on the internet, Plaintiff

has alleged that the total ban on all internet use has damaged his treatment by restricting him from
accessing information that will benefit his personal growth. At least one court has held that similar
allegations weighed in favor of the plaintiff in assessing the first factor. See Daywitt v. Harpstead,
No. 20-CV-1743 (NEB/KMM), 2021 WL 2210521, at *3 (D. Minn. June 1, 2021) (noting that
allegations that “the challenged policies have a counter-therapeutic effect,” if proven true, would
favor the plaintiffs as to the first Turner factor). Plaintiff has also alleged that he has never misused
the internet, which may further support a lack of connection between the institution’s therapeutic
interests and a complete ban on Plaintiff’s internet use. As to the remaining Turner factors, the
Court cannot determine from the face of the complaint whether Plaintiff has alternative means of
exercising his First Amendment rights, what impact accommodating Plaintiff’s right would have

on other civil detainees or the institution, or whether there is a readily alternative to the complete
ban that could be accomplished at a de minimis cost to the institutions’ legitimate interests.
Plaintiff’s allegations provide little information regarding these factors, but they certainly do not
show that these factors favor Defendants. Defendants argue that the relief Plaintiff requests would
require SORTS to invest large amounts of human capital into policing internet activity, that the
effect would compound as numerous other detainees would gain such rights, and that the SORTS
facility currently does not have the monetary and human capital required to successfully police
that internet usage. But those arguments depend on facts not in the record and cannot be evaluated
at this stage of the litigation.
For all of the above reasons, Defendants’ motion to dismiss Plaintiffs’ official capacity
claims will be denied.
2. Individual Capacity Claims
Defendants argue that the individual capacity claims against them should be dismissed

because Plaintiff seeks only injunctive relief and because suits under § 1983 for injunctive relief
cannot be brought against individuals. The Court agrees that Plaintiff seeks only injunctive relief,
not damages. Although the Court has found no Eighth Circuit cases addressing the issue of whether
the plaintiff in a § 1983 case can obtain injunctive relief from a defendant in his or her individual
capacity, cases from other courts support Defendants’ argument. See Brown v. Montoya, 662 F.3d
1152, 1161 n.5 (10th Cir. 2011) (“Section 1983 plaintiffs may sue individual-capacity defendants
only for money damages and official-capacity defendants only for injunctive relief.”); Greenawalt
v. Ind. Dep’t of Corr., 397 F.3d 587, 589 (7th Cir. 2005) (“[S]ection 1983 does not permit
injunctive relief against state officials sued in their individual as distinct from their official
capacity.”); Cmty. Mental Health Servs. of Belmont v. Mental Health & Recovery Bd. Serving

Belmont, Harrison & Monroe Ctys., 150 F. App’x 389, 401 (6th Cir. 2005) (“Just as a plaintiff
cannot sue a defendant in his official capacity for money damages, a plaintiff should not be able
to sue a defendant in his individual capacity for an injunction in situations in which the injunction
relates only to the official’s job, i.e., his official capacity.”); Ballard v. Reitz, No. 4:23-CV-01050-
MTS, 2024 WL 180857, at *2 (E.D. Mo. Jan. 17, 2024) (dismissing a civil detainee’s individual
capacity claims for injunctive relief against SORTS official where the plaintiff sought an order
requiring the defendant to take certain actions to accommodate his religious free exercise; stating,
“Neither the facts Plaintiff pleads nor the relief Plaintiff requests implicates [the defendant] in his
individual capacity”; allowing official capacity claim to remain); Bird v. Mertens-Jones, No. 4:21-
CV-04197-KES, 2023 WL 1785572, at *8 (D.S.D. Feb. 6, 2023) (“The injunctive relief [the
plaintiff] is seeking—enjoining the implementation of allegedly unlawful decisions and policies
at the prison—concerns authority that the defendants have only in their official capacities. Thus,
‘the only relief [the plaintiff] can obtain from these defendants in their individual capacities is

damages,’ and not injunctive relief.”) (quoting Hummel v. Minn. Dep’t of Agric., 430 F. Supp. 3d
581, 593 (D. Minn. 2020)); Mullen v. City of St. Louis, No. 4:20 CV 862 CDP, 2021 WL 5865374,
at *2 (E.D. Mo. Dec. 10, 2021) (dismissing § 1983 claims against officers because the plaintiff
sought only injunctive relief and sued them only in their individual capacities). Cf. Am. Civil
Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 788 F. Supp. 2d 950, 959 (D. Minn. 2011)
(allowing § 1983 claims for prospective injunctive relief against defendants in their individual
capacities to proceed because the case was “unique” in that the defendants’ actions were taken
“both within and outside the scope of their official duties”).
Here, as in the above cases in which individual-capacity claims seeking injunctive relief
were dismissed, Plaintiff’s allegations concern only actions taken within the scope of Defendants’

official duties, and the relief sought relates only to Defendants’ official duties. Thus, the Court will
grant Defendants’ motions to dismiss the claims against them in their individual capacities for
failure to state a claim.
B. Plaintiff’s Motions
Plaintiff has filed four motions; the Court will address each in turn.
1. Motion for Judicial Notice
In his Motion for Judicial Notice, Plaintiff asks the Court to take judicial notice of several
alleged facts: that Plaintiff received legal mail from Defendant Hacker on July 17, 2024; that
Hacker’s response and motion to dismiss were filed 51 days past the 21 day deadline that was
established by the Court, that Plaintiff used a word processor to file a motion for summary
judgment and response to Plaintiff’s motion to dismiss; that on July 25, 2024, Plaintiff requested
to have items printed for this case; that SORTS staff stifled Plaintiff by having him wait and ask
the ward clerks to print the pleading on July 29, 2024; that Plaintiff filed a ward clerk paper on

July 30, 2024; and that Plaintiff’s time for response was July 24, 2024. Plaintiff requests that the
Court will “accept the judicial notice and allow [him] to prevail.” ECF No. 35, at 2. The same day
he filed this motion, Plaintiff also filed a “Motion Summary Judgment/Response to Motion to
Dismiss.” ECF No. 36.
To the extent that Plaintiff asks the Court to take judicial notice of these facts, the motion
is denied. “Under Federal Rule of Evidence 201(b), a court may take judicial notice of a ‘fact that
is not subject to reasonable dispute because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.’” Williams v. Emps. Mut. Cas. Co., 845
F.3d 891, 904 (8th Cir. 2017) (quoting Fed. R. Evid. 201(b)). The facts set forth in the motion do
not meet this standard. To the extent Plaintiff asks the Court to allow him to “prevail” on this

action generally, the motion is also denied. However, to the extent that Plaintiff seeks leave to file
his response to Defendant Hacker’s motion to dismiss out of time, based on his statements
indicating that facility staff made it difficult for him to timely review the motion and file a
response, the motion is granted.
2. Motion for Summary Judgment/Response to Motion to Dismiss
In his Motion for Summary Judgment/Response to Motion to Dismiss, Plaintiff submits a
list of facts and legal arguments that appear to constitute both his response to Defendant Hacker’s
motion to dismiss and a request that the Court grant summary judgment in his favor. To the extent
that this is a response to Defendant Hacker’s motion to dismiss, the Court has considered it in
ruling on the motion to dismiss. To the extent that Plaintiff is moving for summary judgment, the
motion is denied because it does not comply with either the Federal Rules of Civil Procedure or
this Court’s local rules. See Fed. R. Civ. P. 56(a), (c) (requiring a movant seeking summary
judgment to show that there is no genuine dispute as to any material fact and setting forth

procedures for supporting factual positions, including citing to particular materials in the record);
E.D. Mo. L.R. 4.01(A) (requiring a party filing a motion to file with the motion a memorandum in
support of the motion and any documentary evidence relied on); E.D. Mo. L.R. 4.01(E) (requiring
a memorandum filed in support of a motion for summary judgment to be accompanied by a
document titled Statement of Uncontroverted Material Facts that sets forth each relevant fact in a
separately numbered paragraph stating how each fact is established by the record, with appropriate
supporting citations).
In the alternative, Plaintiff asks that if the Court does not grant summary judgment against
Defendant Hacker, the Court order Defendant Hacker to meet with Plaintiff, cause this case to
proceed, deny Defendant Hacker any form of immunity and hold him responsible for the violation

of Plaintiff’s constitutional rights, and affirm that Plaintiff is not a prisoner and is not in SORTS
to be punished. These requests will be denied because they are unsupported by any authority
and/or are moot in light of this Court’s ruling on the motion to dismiss, which states that Plaintiff
is not a prisoner and which will allow this case to proceed.
3. Motion to Appoint Counsel
In his Motion to Appoint Counsel, Plaintiff asks the Court to appoint counsel for him
because he is not a lawyer and does not know all the requirements he needs to follow, because he
is engaged in treatment for his sex offenses and has little time or resources to work on this lawsuit,
and because justice would be served if he had counsel. The motion will be denied without
prejudice. There is no constitutional or statutory right to appointed counsel in civil cases. Ward v.
Smith, 721 F.3d 940, 942 (8th Cir. 2013). A district court may appoint counsel in a civil case if the
court 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). In deciding whether to appoint
counsel, the court considers relevant factors such as the complexity of the facts and legal
arguments, the ability of the pro se litigant to investigate the facts, the existence of conflicting
testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cnty.
Jail, 437 F.3d 791, 794 (8th Cir. 2006).
After considering these factors, the Court finds that the appointment of counsel is not
warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his
claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be
complex. The Court will therefore deny the motion for appointment of counsel without prejudice.
In the alternative, Plaintiff asks that if the Court deny his request for counsel, the Court

order SORTS staff to assist Plaintiff in several specific ways. Because the Court is unaware of any
legal authority that would permit it to grant the requested relief, this request will be denied.
4. Motion for His First Request of Documents
In Plaintiff’s Motion for His First Request of Documents, Plaintiff requests copies of
various SORTS documents that may be relevant to his lawsuit, such as policies and procedures,
certain emails, and committee meeting minutes. This appears to be a request for production of
documents under Fed. R. Civ. P. 34(a) that should be directed to Defendants and not filed with the
Court. See E.D. Mo. L.R. 3.02(A). (“[D]iscovery and disclosure materials pursuant to Fed. R. Civ.
P. 26, 30, 31, 33, 34, 35, and 36 . . . shall not be filed with the Court except as exhibits to a motion
or memorandum.”). Because this motion does not seek any relief from the Court, it will be denied.
IV. CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that Defendant George Killian’s Motion to Dismiss

Plaintiff’s Second Amended Complaint (ECF No. 24) is GRANTED IN PART AND DENIED
IN PART. With respect to Plaintiff’s individual capacity claim, the motion is GRANTED. With
respect to Plaintiff’s official capacity claim, the motion is DENIED.
IT IS FURTHER ORDERED that Defendant Denise Hacker’s Motion to Dismiss
Plaintiff’s Second Amended Complaint (ECF No. 31) is GRANTED IN PART AND DENIED
IN PART. With respect to Plaintiff’s individual capacity claim, the motion is GRANTED. With
respect to Plaintiff’s official capacity claim, the motion is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Judicial Notice (ECF No. 35) is
GRANTED IN PART and DENIED IN PART. To the extent Plaintiff seeks leave to file his
response to Defendant Hacker’s motion to dismiss out of time, the motion is GRANTED. In all

other respects, the motion is DENIED.
IT IS FURTHER ORDRED that Plaintiff’s Motion for Summary Judgment/Response to
Motion to Dismiss (ECF No. 36) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (ECF
No. 38) is DENIED, without prejudice to refiling at a later time.
IT IS FINALLY ORDERED that Plaintiff’s Motion for His First Request for Documents
(ECF No. 39) is DENIED.
The Court will enter a separate Case Management Order.
Vy

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 3rd day of January, 2025.

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10774004. Public record. Not legal advice.