                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1433
                         ___________________________

                                      Kevin Ward,

                        lllllllllllllllllllll Plaintiff - Appellant,

                                            v.

                 Bradley Smith; Tiffany Breeden; Dustin Merriett,

                      lllllllllllllllllllll Defendants - Appellees.
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                            Submitted: January 17, 2013
                               Filed: July 29, 2013
                                   [Published]
                                 ____________

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
                         ____________

PER CURIAM.

      Inmate Kevin Ward brought this action pursuant to 42 U.S.C. § 1983 against
two correctional officers and a nurse at South Central Correctional Center in Licking,
Missouri. He alleges that the officers used excessive force against him, and that the
nurse was deliberately indifferent to his medical needs, in violation of the Eighth
Amendment. After a period of litigation, Ward filed a second motion for appointment
of counsel, which the district court1 denied, and Ward appealed. According to circuit
precedent, we have jurisdiction over this interlocutory appeal, and we affirm the
denial of the motion.2

       The underlying dispute arose out of events on October 26, 2009. Ward alleges
that he was in his cell speaking with another inmate when Officer Merriett told him
to stop talking. When Ward refused, Officer Merriett retrieved Officer Smith. The
officers ordered Ward to permit them to handcuff him, and Ward refused to comply.
Officer Smith then placed the nozzle of a pepper spray canister through the food port
of Ward’s cell and sprayed him. Ward claims that when he attempted to turn the
nozzle toward the floor, the officers used a “battering ram” to prevent him from
blocking the pepper spray and sprayed him again. The officers then placed Ward in
a “strip out cage,” where Ward refused the clean “smock” the officers provided.
Ward once again refused to allow the officers to handcuff him, and he alleges that the
officers sprayed him “directly in the face and mouth.”

       Once the officers had restrained Ward, a nursing professional named Tiffany
Breeden examined him. Ward claims that Breeden disregarded his request that she
“irrigate” his face and eyes, his assertion that he is asthmatic, and his complaints
about injuries allegedly caused by the battering ram. He contends that Breeden told
the officers that he would be able to “handle” more pepper spray, and that Officer
Smith then sprayed his genitals and used a racial slur. Ward claims that the officers
then placed him in a cell with no running water, towels, or clothes for four and a half
days.


      1
       The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
      2
       This court appointed Patrick Kenny, Esq., to represent Ward on appeal and to
address, among other things, the question of appellate jurisdiction. Mr. Kenny has
ably discharged his duties, and the court thanks him for his diligent service.

                                         -2-
       After unsuccessfully pursuing administrative remedies, Ward filed this action.
Near the outset of the proceedings, he moved for appointment of counsel pursuant to
28 U.S.C. § 1915(e). The district court denied the motion on the basis that “the
record has not been developed sufficiently to determine if appointment of counsel is
justified.”

       After discovery began, Ward filed a second motion for appointment of counsel.
He contended, among other things, that video cameras captured the pepper-spray
incident, that prison officials would not produce video tapes to an inmate proceeding
pro se, and that prison guards had confiscated some of his legal documents. Breeden
opposed Ward’s motion, arguing that it was unnecessary for the court to appoint
counsel because Ward had been able to file two complaints and several other
documents, had not demonstrated that the case was either legally or factually
complex, and had not attempted to retain counsel. Officers Smith and Merriett
opposed Ward’s motion on the grounds that no materials had been confiscated and
that Ward had “demonstrated an ability to pursue his claims.” The district court
denied Ward’s motion “for the reasons given in defendants’ suggestions in opposition
thereto.” Ward now appeals, arguing that the district court abused its discretion by
denying his motion on the merits and by failing adequately to explain its decision.

       In civil cases, there is no constitutional or statutory right to appointed counsel.
Edgington v. Mo. Dep’t of Corr., 52 F.3d 777, 780 (8th Cir. 1995). Rather, a court
“may request an attorney to represent any person unable to afford counsel.” 28
U.S.C. § 1915(e)(1). This court has delineated certain criteria for district courts to
consider in deciding whether to recruit counsel, including the factual and legal
complexity of the underlying issues, the existence of conflicting testimony, and the
ability of the indigent plaintiff to investigate the facts and present his claims. Phillips
v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). We review the denial of a
motion for appointment of counsel for an abuse of discretion, according the district
court “a good deal of discretion to determine whether representation is warranted

                                           -3-
given the nature of the case and the litigants.” Chambers v. Pennycook, 641 F.3d
898, 909 (8th Cir. 2011).

       In most circuits, an order denying a motion for appointment of counsel in a
§ 1983 action is not immediately appealable, because there is no final decision of the
district court. See Marler v. Adonis Health Prods., 997 F.2d 1141, 1142 & nn.1 &
2 (5th Cir. 1993) (collecting cases). In Nelson v. Shuffman, 476 F.3d 635 (8th Cir.
2007) (per curiam), however, this court asserted jurisdiction in such a case. The
Nelson majority opinion does not mention jurisdiction, and we might normally be at
liberty to disregard a sub silentio assertion. See Hagans v. Lavine, 415 U.S. 528, 533
n.5 (1974). But the jurisdictional issue in Nelson was fully aired in a dissent, 476
F.3d at 636-38 (Colloton, J., dissenting), and we feel constrained as a matter of circuit
practice to follow Nelson. See also Slaughter v. City of Maplewood, 731 F.2d 587,
588-89 (8th Cir. 1984) (holding that an order denying appointment of counsel in a
Title VII case was immediately appealable under the collateral order doctrine of
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)). A majority of this
panel would revisit Nelson, but only the court en banc may overrule panel precedents.

       The district court did not abuse its considerable discretion in denying Ward’s
motion. Ward argues that the court should have appointed counsel in light of
discovery disputes that have developed in the case. He complains that while the
prison officials assert that there is no need for appointment of counsel, they also
maintain that certain important materials cannot be produced in discovery to an
inmate who proceeds without counsel. But if the district court perceives such
gamesmanship, then it has authority to address it without appointing counsel. Insofar
as the prison officials contend that Mo. Rev. Stat. § 217.075 or an internal policy
forbids them to produce certain materials to inmates who proceed pro se, the district
court has authority under the federal rules to order discovery for good cause. See Fed.
R. Civ. P. 26(b)(1) (“For good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action.”); see also Mo. Rev. Stat.

                                          -4-
§ 217.075(2) (“The court of jurisdiction . . . may at [its] discretion permit the
inspection of the department reports or parts of such reports by the offender,
whenever the court . . . determines that such inspection is in the best interests or
welfare of the offender.”). So when Ward filed his motion for appointment of
counsel, the district court was presented with a typical discovery dispute over
evidence of an alleged excessive use of force by prison officials. As such, the court
did not abuse its discretion in concluding that neither the underlying facts nor the
legal arguments were so complex as to require appointment of counsel. Ward’s well-
written filings with the court “indicate his basic ability to state claims.” Edgington,
52 F.3d at 780.

       We are satisfied that the district court sufficiently explained its rationale for
denying Ward’s motion. Although the court’s analysis was limited to a reference to
“the reasons given in defendants’ suggestions in opposition” to Ward’s motion, the
memoranda to which the court referred identified the correct legal standard and
addressed the relevant factors. The opposition briefs cited “the factual and legal
complexity of the case” as one of the factors that the district court must consider,
referred to the prison’s practice of not providing certain materials “to pro se inmates
because providing such materials undermines the safety and security of the
correctional center,” noted that Ward could still “request an opportunity to view the
videos in this case,” and argued that “[t]hus far, Mr. Ward has demonstrated an ability
to pursue his claims.” Unlike Walker v. Bowersox, 526 F.3d 1186 (8th Cir. 2008),
where “the district court did not explain why the relevant factors were not met,” id.
at 1190, the court here provided an explanation by incorporating the arguments
advanced by the defendants. There was no abuse of discretion.

                                  *        *       *
      The order of the district court is affirmed.




                                          -5-
MURPHY, Circuit Judge, dissenting.

         I respectfully dissent from the court's decision to affirm the district court's
denial of Kevin Ward's motion to appoint counsel. Appellant moved for appointment
of counsel in order to manage a discovery dispute that rapidly outgrew the abilities
of an average imprisoned pro se litigant, but his request was denied. Two of the most
important considerations for a court on such a motion are the factual and legal
complexity of the case and "the ability of the indigent person to investigate the facts
. . . [and] to present claims." Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir.
2006).3

       The main issue in this case involves discovery disputes relating to video tapes
that allegedly documented a prison assault on Ward. He asserts that while his initial
grievances were denied because the video evidence purportedly did not support his
allegations, prison officials have since vacillated as to whether the video actually
existed and whether it in fact recorded all of the alleged assault. Ward contends that
prison administrators have persistently refused to allow him access to the video and
to other material evidence on the ground that he is a pro se litigant and that evidence
was confiscated from him when he was housed in administrative segregation.
Appellees dispute Ward's allegations about alteration of the video evidence and
confiscation of his legal materials. They contend that for safety and security reasons
much of the evidence not yet released to Ward cannot be provided to imprisoned
inmates.

     What might originally have been characterized simply as a dispute over
production of a videotape has grown into a wider conflict concerning potential

      3
        While there is no statutory or constitutional right to appointed counsel in civil
cases, Edgington v. Mo. Dep't of Corr., 52 F.3d 777, 780 (8th Cir. 1995), we have
instructed courts to "give 'serious consideration' to appointing counsel whenever an
indigent plaintiff establishes . . . a prima facie case which, if proven, would entitle
him to relief," Sours v. Norris, 782 F.2d 106, 107 (8th Cir. 1986) (citation omitted).

                                           -6-
spoliation and Ward's need for adequate access to discovery balanced against the
prison's asserted security interests in restricting what materials can be disclosed to an
incarcerated litigant. There are also questions about what evidence actually was
provided to Ward or confiscated from him. Such issues have grown complicated
enough even to confuse the attorneys appearing before our court. At oral argument
the Assistant Attorney General represented to the court that Ward had in fact viewed
the disputed video. Counsel appointed for Ward at the time was able to correct that
record, and the state later admitted error in a Rule 28(j) letter. While there is no
reason to believe the misstatement at oral argument was anything other than an
innocent mistake, it does underline the difficulty of the discovery dispute for even
seasoned litigators, much less an incarcerated inmate with no legal experience.

       The majority suggests that the district court can order discovery if it perceives
any "gamesmanship" by prison officials. Ante at 4. There are two problems with this
suggestion. First, it does not address current questions raised by Ward about
spoliation and evidence alteration. Second, and more importantly, Ward has
repeatedly emphasized that his appeal does not concern how the district court should
rule on the underlying discovery dispute. Rather, it is about whether the nature of
that dispute and the facts and law surrounding it are sufficiently complex to require
appointment of counsel. The potential issues include which materials Ward should
be provided and whether oversight is necessary to prevent any spoliation of evidence.
Such issues can be complicated and touch on sensitive issues of prison policy and
procedures.

       On abuse of discretion review, we look to ensure that the district court gave
due weight and consideration to all relevant and significant factors. Thatcher v.
Hanover Ins. Grp., Inc., 569 F.3d 1212, 1213 (8th Cir. 2011). The difficulty Ward
faces in order to secure all relevant evidence and determine whether it has been
altered is "a relevant factor that should have been given significant weight" by the
district court. Id.; see Walker v. Bowersox, 526 F.3d 1186, 1190 (8th Cir. 2008).
Although the district court did not provide any independent rationale for its decision,

                                          -7-
it cited the "defendants' suggestions in opposition" as grounds for its ruling. The
defendants submitted two short memoranda opposing appointment of counsel.
Neither response addresses the complexity of the dispute or Ward's ability to retain
access to material evidence and ensure it has not been altered. See Defendants’
Opposition to Plaintiff’s Second Motion for Appointment of Counsel, Docket No. 36;
Memorandum of Defendant Tiffany Breeden, In Opposition to Plaintiff's Motion To
Appoint Counsel, Docket No. 34. This is not different in any meaningful respect
from the situation in Bowersox where the district court also "did not explain why the
relevant factors were not met" and we remanded for more thorough consideration of
whether to appoint counsel. 526 F.3d at 1190.

       The district court's decision denying appointment of counsel did not give
significant weight to the relatively complicated nature of the ongoing discovery
dispute in this case. Its order should therefore be reversed and remanded for further
consideration of the motion to appoint counsel for Ward in this matter.
                         ______________________________




                                         -8-
