Greene v. Lake

          ORDER

          Katherine Menendez United States Magistrate Judge

         This 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.

         I. Motion to Amend and IFP Application

         When 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).

         Mr. 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.

         The 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)).

         The Carlton County Defendants^[1] 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.)

         The 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.

         Second, 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.

         Third, 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.

         Accordingly, 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.

         II. Motion for Payment of Fees and Costs

         In the 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.)

         Rule 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 ...