United States District Court, D. Minnesota
Guy I. Greene, and Hollis Larson, Plaintiffs,
Kelly Lake, et al., Defendants.
Katherine Menendez United States Magistrate Judge
matter is before the Court on the “Notice of Additional
Parties” filed by the Plaintiff Guy I. Greene on March
9, 2018, which seeks to add Hollis Larson as an additional
plaintiff to the action. (Mot. to Am., ECF No. 54.) Mr.
Larson has also filed a motion for leave to proceed in
forma pauperis. (IFP Application, ECF No. 55.) This
matter is also before the Court on Mr. Greene's
“Motion for Payment of Fees and Costs, ” which
asks the Court to appoint experts and require the defendants
or the State of Minnesota to pay for such experts'
assistance. (Fee Mot., ECF No. 60.) For the reasons below,
the Court grants the request to add Mr. Larson as a
plaintiff, grants Mr. Larson's IFP application, and
denies Mr. Greene's motion for appointment of experts and
payment of their fees.
Motion to Amend and IFP Application
this case was originally filed, Hollis Larson was one of two
named plaintiffs alongside Guy Greene. Like Mr. Green, Mr.
Larson is currently confined at the Minnesota Sex Offender
Program's (“MSOP”) facility in Moose Lake,
Minnesota. In their original complaint, both Mr. Larson and
Mr. Green made allegations against various officials relating
to the conditions they experienced at the Carlton County Jail
during their respective periods of confinement there.
(Compl., ECF No. 1.) However, on August 23, 2017, because Mr.
Larson qualified as a “prisoner” within the
meaning of the Prison Litigation Reform Act, 28 U.S.C. §
1915, the Court explained that he would have to pay the full
filing fee in installments and ordered Mr. Larson to pay an
initial partial filing fee. (Order (Aug. 23, 2017), ECF No.
7.) Seven days after the Court issued that Order, Mr. Larson
filed a notice of voluntary dismissal without prejudice
indicating that he had elected not to prosecute this case.
(Notice of Voluntary Dismissal, ECF No. 8.) The dismissal of
Mr. Larson's claims was automatic pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A)(i).
Larson has apparently had a change of heart and wants to
again be a party to this litigation. In the Notice of
Additional Parties, Mr. Greene and Mr. Larson assert that Mr.
Larson “will be added as a named plaintiff in this
case.” (Mot. to Am. at 1.) Mr. Larson signed the Notice
of Additional Parties. (Id. at 2 (including Mr.
Larson's signature in the “Certification of
Service” section).) The Notice also states that
“[t]he Complaint in this case does not need to be
amended to include Mr. Larson's claims as they remain in
Mr. Greene's Amended Complaint.” (Id. at
1.) Mr. Larson filed a new application to proceed in
forma pauperis and an affidavit in support of his
request for IFP status. (IFP Application, ECF No. 55; Larson
Aff. in Supp. of IFP Application, ECF No. 56.) The Court
construes the Notice of Additional Parties as a motion to
further amend the complaint to add Mr. Larson as a plaintiff.
question now is whether to allow Mr. Larson back into the
case as a second pro se litigant litigating his own claims
against the Carlton County Defendants alongside Mr.
Greene's claims. The Court treats this request as a
motion for leave to amend the pleadings under Federal Rule of
Civil Procedure 15(a)(2). Under this Rule, leave to amend
should be freely given “when justice so
requires.” Id. “However, there is no
absolute right to amend and a finding of ‘undue delay,
bad faith, or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of
amendment' may be grounds to deny a motion to
amend.” Doe v. Cassel, 403 F.3d 986, 991 (8th
Cir. 2005) (quoting Becker v. Univ. of Neb. at
Omaha, 191 F.3d 904, 908 (8th Cir. 1999)).
Carlton County Defendants also responded to the motion and
opposed the request to have Mr. Larson deemed a plaintiff in
this litigation again. (Defs.' Mem., ECF No. 58.) They
point out that Mr. Greene cannot bring claims on behalf of
any other party and that Mr. Larson's claims have already
been dismissed. Therefore, the Carlton County Defendants
argue Mr. Larson's claims do not, in fact, “remain
in Mr. Greene's Amended Complaint” as asserted in
the motion to amend. (Defs.' Mem. at 3-4.)
Court concludes that leave to amend should be granted here
for three reasons. First, although the Carlton County
Defendants are correct that Mr. Larson's claims were
previously dismissed and that Mr. Greene (a non-lawyer)
cannot represent the interests of anyone other than himself,
this does not answer the question whether leave to amend
should be granted. The Court is not persuaded that leave to
amend should be denied based on this argument.
the First Amended Complaint already contains a substantial
list of allegations regarding Mr. Larson's own experience
at the Carlton County Jail. Mr. Greene could not advance
those claims on his own, but Mr. Larson has essentially
adopted them by signing off on the motion to amend and asking
that the First Amended Complaint be treated as though it
contains his own claims.
there is no basis in the record to deny leave to amend based
on undue delay, bad faith, dilatory motive, failure to cure
deficiencies by previous amendments, undue prejudice, or
futility. The Carlton County Defendants raised none of these
issues in their response to the motion to amend, and the
Court sees no basis for such concerns.
the First Amended Complaint is deemed amended to include
Hollis Larson as a plaintiff in this litigation. The First
Amended Complaint need not be refiled and the Carlton County
Defendants are not required to file and serve an amended
answer. In addition, based on his IFP Application and
supporting affidavit the Court concludes that Mr. Larson has
demonstrated he is financially eligible to proceed in
forma pauperis in this litigation. Therefore, the IFP
application is granted.
Motion for Payment of Fees and Costs
motion for payment of fees and costs, Mr. Greene asks the
Court to appoint expert witnesses pursuant to Federal Rule of
Evidence 706 and to require the Carlton County Defendants,
the State of Minnesota, or both to pay for expert witness
fees and expenses. (Fee Mot.) Mr. Greene asserts that
although he does not yet know “the precise extent of
the required expert testimony in this case, ” he
“anticipate[s] that he will need to provide expert
testimony on at least the following topics: 1) the failure of
the Carlton County Jail to establish policies and procedures
that comport with constitutional protections, 2) the problems
associated with the current jail and the requirements to
create constitutionally acceptable conditions of
confinement.” (Id. at 1.) Specifically, Mr.
Greene asserts that he seeks expert witness fees and
deposition expenses related to “the services of a
licensed psychologist and/or psychiatrist and an expert on
prison/jail conditions and how they affect detainees.”
(Id. at 4.) In support of his request that the
Defendants must advance the fees and costs of any expert
witnesses, Mr. Greene cites U.S. Marshals Service v.
Means, 741 F.2d 1053 (8th Cir. 1984), and notes that he
has been granted permission to proceed IFP and cannot afford
to cover the costs of expert witnesses himself. He argues
that this case presents “compelling
circumstances” to require Defendants to advance experts
fees and costs. (Id. at 2-3.)
706 allows the Court to appoint expert witnesses “[o]n
a party's motion or on its own.” Fed.R.Evid.
706(a). The Rule also allows the Court to set a reasonable
compensation for such an expert and require it to be paid
“by the parties in the proportion and at the time that
the court directs-and the compensation is then charged like
other costs.” Fed.R.Evid. 706(c)(2). The decision
whether to appoint an expert under the Rule is committed to
the district court's discretion. Rachel v.
Troutt, 820 F.3d 390, 397 (10th Cir. 2016). “[T]he
exercise of Rule 706 ...