United States District Court, D. Minnesota
Guy I. Greene and Hollis Larson, Plaintiffs,
Kelly Lake, et al., Defendants.
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
matter comes before the undersigned on Plaintiffs' Motion
for the Appointment of Counsel. (Dkt. No. 92.) Plaintiffs
also brought a Motion to Reopen Discovery and to Change the
Pretrial Scheduling Order (Dkt. No. 97) as part of their
reply in support of the Motion for the Appointment of
Counsel. For the reasons stated below, the Court denies
Plaintiffs' requested relief.
have made multiple requests for appointment of counsel, and
all previous requests having been denied. (See,
e.g., Dkt. Nos. 20, 73, 80.) Pro se litigants do not
have a constitutional or statutory right to counsel in civil
cases. See Stevens v. Redwing, 146 F.3d 538, 546
(8th Cir. 1998) (citation omitted). Indeed, with exceptions
not relevant here, district courts lack statutory authority
to formally appoint counsel-that is, to “require an
unwilling attorney to represent an indigent
litigant”-in most civil cases. Mallard v. U.S.
Dist. Ct. for the Dist. of Iowa, 490 U.S. 296, 298
(1989); compare 18 U.S.C. § 3006A (providing
authority to appoint counsel in criminal cases). Instead, the
Court “may request an attorney to
represent any person unable to afford counsel”
in a civil case. 28 U.S.C. § 1915(e)(1) (emphasis
added). The Eighth Circuit “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.” Ward v. Smith, 721 F.3d 940, 942 (8th
Cir. 2013) (emphasis added) (citing Phillips v. Jasper
Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006)).
Plaintiffs claim they need counsel because they require
assistance to “investigate the facts, ” want help
with “considerable discovery, ” and face
conflicting testimony regarding witnesses. (Dkt. No. 93 at
5-6.) Civil plaintiffs are not entitled affirmative
assistance from the Court in litigating their claims,
including conducting discovery. See Brown v. Cooper,
No. CV 18-219 (DSD/BRT), 2018 WL 3360769, at *1 (D. Minn.
July 10, 2018) (citing Baker v. Immanuel Med. Ctr.,
No. 8:06CV655, 2007 WL 2914547, at *2 (D. Neb. Oct. 3, 2007)
(“Granting leave to proceed in forma pauperis does not
grant the right to affirmative assistance from the court in
conducting discovery.”)). Even assuming that the Court
concludes Plaintiffs needed assistance with discovery, which
it does not, discovery in this matter closed on November 1,
2018, rendering assistance from counsel in this regard mostly
moot. (Dkt. No. 52.)
have asked as part of their reply in support of the motion
for the appointment of legal counsel that the Court reopen
discovery pursuant to Rule 16 of the Federal Rules of Civil
Procedure, on the basis that Defendants allegedly refused to
respond their discovery requests because they were untimely
served, even though they were allegedly served before
November 1, 2018. (Dkt. No. 97 at 1.) The scheduling order in
this case was entered on February 21, 2018. (Dkt. No. 52.)
The scheduling order provides in relevant part:
November 1, 2018- All discovery of any kind
shall be commenced in time to be completed by this date.
(Dkt. No. 52 at 2 (emphasis in original).)
orders pursuant to Rule 16(b)(1) “assure[ ] that at
some point both the parties and the pleadings will be fixed .
. .” Fed.R.Civ.P. 16(b), advisory committee's note
to 1983 amendment. Moreover, “Rule 16(b) assures that
‘[a] magistrate judge's scheduling order ‘is
not a frivolous piece of paper, idly entered, which can be
cavalierly disregarded . . . without peril.'”
Archer Daniels Midland v. Aon Risk Services, Inc.,
187 F.R.D. 578, 582 (D. Minn. 1999) (quoting Gestetner
Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me.
1985)). Under Rule 16(b), “[a] schedule may be modified
only for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). Similarly, Local Rule 16.3 requires a
party moving to modify a scheduling order to “establish
good cause” for the proposed modification. “The
primary measure of good cause is the movant's diligence
in attempting to meet the order's requirements.”
Sherman v. Winco Fireworks, Inc., 532 F.3d 709,
716-17 (8th Cir. 2008) (citing Rahn v. Hawkins, 464
F.3d 813, 822 (8th Cir. 2006)). Rule 16(b) focuses on
“the diligence of the party seeking to modify a
Scheduling Order, as opposed to the litany of unpersuasive
excuses, inclusive or inadvertence and neglect, which
commonly undergird an untimely Motion to Amend.”
Scheidecker v. Arvig Enters., 193 F.R.D. 630, 632
n.1 (D. Minn. 2000) (citations omitted).
incumbent on Plaintiffs to be familiar with the deadlines
imposed by the Court in its scheduling order. See Ackra
Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856
(8th Cir. 1996) (“In general, pro se representation
does not excuse a party from complying with a court's
orders and with the Federal Rules of Civil
Procedure.”). Plaintiffs have had over eight months to
conduct discovery, yet apparently waited too late to serve
their written discovery on Defendants. Any assertion that
they were unable to serve written discovery or conduct other
discovery in this case is disingenuous given Plaintiffs'
apparent ability to file several motions with the Court over
the same time period. (See, e.g., Dkt. Nos.
54, 60, 71, 84.) The Court finds no good cause to extend the
discovery deadline in this case.
remainder of Plaintiffs' arguments in support of their
request for the appointment of counsel focuses on the
complexity of the legal issues in this case, their health
issues and their lack of access to a law library and legal
materials necessary to prosecute their claims. (Dkt. No. 93
at 5-8; Dkt. No. 94.) Plaintiffs have demonstrated throughout
this litigation the ability to seek relief from the Court,
having filed several motions and other requests. They have
also has demonstrated the ability to cite legal authority, as
is evidence by the numerous case citations included in
support of the as part of the present Motion and have
otherwise shown themselves capable of litigating this case.
There appear to be no indications (except for their own lack
of diligence as it relates to the Court's scheduling
order) that Plaintiffs suffer any impediment that is unusual
or extraordinary when compared to those encountered by other
pro se litigants who are confined in institutions within the
State of Minnesota.
upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that:
Plaintiffs' Motion for the Appointment of Counsel (Dkt.
No. 92) is DENIED; and
Plaintiffs' Motion to Reopen Discovery and to Change the
Pretrial Scheduling ...