Reese v. Sherburne County Detention Center

Background

Dontay Lavarice Reese filed three motions. First, he asked the court to allow Kenneth Daywitt to assist him in litigating the case and to order transportation or another method of communication between them. Second, he asked for permission for Daywitt to assist him under a power of attorney. Third, he requested funds to pay a psychiatric expert of his choice under Federal Rule of Evidence 702.

Daywitt submitted an affidavit stating that he held power of attorney for Reese, was not an attorney, and was willing to assist Reese. Reese also filed an authorization allowing information to be released to Daywitt and a Minnesota statutory short-form power of attorney. The opinion does not decide the legal effect of that power of attorney generally.

The MEnD defendants took no position on Daywitt’s assistance but objected to paying for transportation or communication and to paying for an expert. The Sherburne County defendants raised concerns about unauthorized practice of law, asked not to be required to exchange pleadings with Daywitt, and also said they would not pay for transportation or expert services.

Assistance, communication, and referral

The court denied Reese’s first two motions concerning assistance and communication with Daywitt. It explained that a person in custody may receive legal help from another inmate when necessary to access the courts, but there is no separate right to assistance from a jailhouse lawyer of the person’s choosing. Reese had not shown that the existing communication arrangements denied him access to the courts, and he cited no authority establishing a right to assistance from a non-lawyer of his choice.

The court therefore declined to recommend an injunction requiring the facilities where Reese and Daywitt were confined to provide a particular communication method or transport them for an in-person meeting. The court did not prohibit Reese from receiving Daywitt’s assistance or advice.

The court also clarified that Daywitt was not authorized to practice law before it. The power of attorney and information-release authorization did not permit Daywitt to sign or file pleadings for Reese. Daywitt also did not represent Reese for purposes of the litigation, and the MEnD defendants and Sherburne County defendants were not required to communicate with him about Reese’s case.

As an alternative, Reese asked the court to refer him to the Federal Bar Association’s Pro Se Project and to reconsider a June 11, 2020 order that had denied that referral. The court was not persuaded that a referral was appropriate and declined to reconsider the earlier denial.

Expert-witness funds

The court denied Reese’s motion for expert-witness funds at this time. It explained that Rule 706, rather than the Rule 702 provision cited by Reese, permits a court to appoint a neutral expert when expert assistance is needed to help the court determine the facts. Such an expert is not an advocate for either side, and the parties may still call their own experts.

The court concluded that Reese appeared to be seeking an expert who would advocate for his claims, which Rule 706 does not authorize. Even if the request were understood as seeking a neutral expert, the court found it premature because a scheduling order had only recently been issued and no dispositive motions had been filed. The opinion also notes that the statute allowing an indigent person to proceed without paying filing fees does not authorize appointment of or payment for expert witnesses.

Disposition

The court denied Reese’s first two motions concerning Daywitt’s assistance and communication, declined to reconsider the prior denial of a Pro Se Project referral, and denied the motion for expert-witness funds at that time. Judge Katherine Menendez signed the order.