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Spencer v. Brott
United States District Court, D. Minnesota
February 21, 2019
MARVIN SPENCER, Plaintiff,
JOEL L. BROTT, Sheriff; DR. TODD LEONARD, Physician; MICHELL SKROCH, BSIU/CCHD Nursing Dir.; GWEN BLOSSOM ENGLAND, CNP, RN; DR. DIANA VANDERBEEK, Assistant Physician; CAPT. TOM ZERWAS; SGT. TRAVIS LINDSTROM; SGT. BRAD BOHN, Badge #3419; C/O JIM ROURKE, Badge #3341; C/O ANNE HERBST, Badge #3473; C/O JOHNNIE GILBERT; C/O LISA SHORE, Badge #2163; C/O JOSHUA JESBERG, Badge #3304; C/O CATHERINE KOCH, Badge #2145; C/O OLUWASEUN JIBOWU, Badge #3397; C/O DENISE COOK; C/O TAMMY BOROS; C/O NICHOLAS SIMON, Badge #3384; C/O LOGAN BARRETT, Badge #3305; C/O YVONNE ADAMS, Badge #1757; C/O AMY KAHLER, Badge #1901; C/O DAN WORBER, Badge #3360; C/O LAURA HOLMQUIST, Badge #1719; and C/O LORI BENNETT, Badge #1409, Defendants. MARVIN SPENCER, Plaintiff,
JOEL L. BROTT, Sheriff; DR. TODD LEONARD, Physician; MICHELL SKROCH, BSIU/CCHD Nursing Dir.; GWEN BLOSSOM ENGLAND, CNP, RN; DR. DIANA VANDERBEEK, Assistant Physician; CAPT. TOM ZERWAS; SGT. ARIC HANSON, Badge#3401; SGT. REBECCA BEAL, Badge #3418; SGT. TRAVIS LINDSTROM, Badge #; SGT. BRAD BOHN, Badge #3419; C/O JIM ROURKE, Badge #3341; C/O ANNE HERBST, Badge #3473; C/O JOHNNIE GILBERT, Badge #; C/O LISA SHORE, Badge #2163; C/O JOSHUA JESBERG, Badge #3304; C/O CATHERINE KOCH, Badge #2145; C/O OLUWASEUN JIBOWU, Badge #3397; C/O DENISE COOK; C/O TAMMY BOROS, Badge #; C/O NICHOLAS SIMON, Badge #3384; C/O LOGAN BARRETT, Badge #3305; C/O YVONNE ADAMS, Badge #1757; C/O AMY KAHLER, Badge #1901; C/O DAN WORBER, Badge #3360; C/O LAURA HOLMQUIST, Badge #1719; C/O LORI BENNETT, Badge #1409; C/O CHRISTOPHER HANSEN, Badge #1074; C/O THERESA KLINGE, Badge #; JENNIE R. THOMPSON, RN; GWENDOLYN BLOSSOM ENGLAND, RN; ALYSSA PFEIFER, RN; MICHELLE SKROCH, RN; MINDI JOHNSON, CMA; BRIONY BOHN, LPN; CASSANDRA JAMES, RN; and KAYLA HERTENSTEIN, RN, Defendants.
CASE MANAGEMENT ORDER
N. Leung United States Magistrate Judge
above matters, Spencer v. Brott et al., 17-cv-5035
(“Spencer I”), and Spencer v. Brott
et al., 17-cv-5220 (“Spencer II”),
were recently consolidated. (See ECF No. 32 in No.
17-cv-5035; ECF No. 16 in No. 17-cv-5220.) Several items must
be addressed so that this litigation can now move forward,
including: (1) Plaintiff's application to proceed in
forma pauperis (“IFP”) in Spencer
I; (2) completion of service for both cases, including
Plaintiff's obligation to provide completed Marshal
Service Forms; (3) a motion for extension of time; and (4)
motions for continuances and to appoint counsel.
IFP APPLICATION & SERVICE
filed IFP applications in Spencer I and Spencer
II. (ECF No. 2 in No. 17-cv-5035; ECF No. 2 in No.
17-cv-5220.) In Spencer II, Magistrate Judge
Katherine Menendez granted Plaintiff's IFP application
and determined that Plaintiff should be required to pay only
one filing fee between the two cases, reasoning that
Plaintiff likely intended his Complaint in Spencer
II to have been an amended pleading in Spencer
I. (ECF No. 3 in 17-cv-5220.) Spencer I and
Spencer II have now been consolidated. The Court
will likewise grant Plaintiff's IFP application in
Spencer I. In doing so, the Court notes that, as of
April 9, 2018, Plaintiff has paid the single $350 filing fee
in full for these matters. (See ECF Nos. 5-7, 9, 11,
18 in No. 17-cv-5035.)
Plaintiff has been granted IFP status, Plaintiff is entitled
to have all Defendants in these consolidated cases served by
the United States Marshal. See 28 U.S.C. §
1915(d); Fed.R.Civ.P. 4(c)(3). Marshal service cannot be
accomplished, however, until Plaintiff has submitted the
documentation necessary for service of process.
Plaintiff must, therefore, timely submit a properly
completed Marshal Service Form (Form USM-285) for each
Defendant. See Lee v. Armontrout, 991 F.2d
487, 489 (8th Cir. 1993) (per curiam) (noting that it is the
pro se plaintiff's responsibility to provide proper
addresses for service on [the defendants]”).
The Court will give Plaintiff 45 days from the date
of this Order to complete and return the Marshal Service
Forms. It is Plaintiff's
responsibility to complete and return Marshal Service Forms
for all of the Defendants named in his Complaints in
both Spencer I and Spencer II.
Plaintiff fails to comply with this deadline, it will be
recommended that these cases be dismissed without prejudice
for lack of prosecution. Fed.R.Civ.P. 41(b).
Motion for Extension of Time
6, 2018, Plaintiff filed a motion requesting an extension of
time in Spencer II. (ECF No. 6 in No. 17-cv-5220.)
In his motion, Plaintiff stated: “I am making a request
for additional time to re-order all disciplinary reports from
Sherburne County Jail, and medical records.” (ECF No. 6
in No. 17-cv-5220.) This motion is denied without
prejudice. Plaintiff does not appear to be seeking relief
from any deadline established by the Federal Rules of Civil
Procedure. Nor does his request appear to be directly tied to
any deadline set by the Court.
Motions for Continuances and to Appoint Counsel
has also filed several motions in these consolidated cases
for continuances and to appoint counsel. (ECF No. 31 in
17-cv-5035; ECF Nos. 7, 15 in No. 17-cv-5220.) These motions
are also denied without prejudice.
to the extent Plaintiff's motions seek additional time,
such requests are moot in light of the Court's ruling
above that Plaintiff has 45 days from the date of this Order
to complete and return Marshal Service Forms for all of the
Defendants named in his Complaints in both Spencer I
and Spencer II.
as the Court previously explained in an Order dated August
30, 2018, in Spencer I, “‘[i]n civil
cases, there is no constitutional or statutory right to
appointed counsel.'” (ECF No. 28 at 2 in No.
17-cv-5035 (quoting Ward v. Smith, 721 F.3d 940, 942
(8th Cir. 2013)).) In deciding whether appointment of counsel
is warranted, courts consider the factual and legal
complexity of the case, the plaintiff's ability to
investigate facts, whether the proceeding involves
conflicting testimony, and the plaintiff's ability to
present his claims. Phillips v. Jasper Cty. Jail,
437 F.3d 791, 794 (8th Cir. 2006).
same reasons previously articulated in the Court's August
30, 2018 Order in Spencer I, Plaintiff's renewed
requests for appointment of counsel are likewise denied.
Again, Plaintiff is able to articulate his positions to the
Court and has filed several motions requesting relief
throughout the life of these cases; the factual and legal
issues in these cases are not uniquely complex; and Plaintiff
has demonstrated no specific impediment to representing his
own interests. See Trotter v. Lawson, 636 Fed.Appx.
371, 373 (8th Cir. 2016) (per curiam); Ward, 721
F.3d at 942; Phillips, 437 F.3d at 794. Moreover,
the Court previously directed the Clerk of Court to provide
Plaintiff with a copy of the Court's Pro Se Civil
Guidebook, a resource for litigants like Plaintiff who are
representing themselves. (ECF No. 23 in 17-cv-5035.)
Court appreciates that Plaintiff's incarceration and lack
of a formal legal education present certain challenges to
self-representation. In Patterson v. Kelley, 902
F.3d 845 (8th Cir. 2018), the Eighth Circuit Court of Appeals
recently considered whether the district court abused its
discretion in denying a prisoner's request for
appointment of counsel in a § 1983 action against state
prison officials. On appeal, the prisoner argued that counsel
should have been appointed because: (1) “as an inmate,
he was unable to interview witnesses and secure relevant
information”; (2) “his inartfully worded
interrogatories allowed defendants to give evasive
answers”; and (3) ...