United States District Court, D. Minnesota
Edward A. Henderson, Plaintiff,
State of Minnesota, Defendant.
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to Amend
the Complaint, Motion for Preliminary Injunction, and Motion
for Appointment of Counsel (Dkt. No. 24). Regarding
Plaintiff's Motion to Amend, Defendant filed a Motion to
Dismiss on April 10, 2019. (Dkt. No. 14.) Under Federal Rule
of Civil Procedure 15(a)(1), “[a] party may amend its
pleading once as a matter of course within . . . 21 days
after service of a motion under Rule 12(b), (e), or
(f).” Accordingly, Plaintiff had until May 1, 2019 to
file an amended complaint without leave of court. However,
Plaintiff's Motion to Amend was filed on May 16, 2019,
and thus Plaintiff may amend his complaint “only with
the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2).
Plaintiff's Motion to Amend does not comply with the
Local Rules. Local Rule 15.1(b) states:
Any motion to amend a pleading must be accompanied by: (1) a
copy of the proposed amended pleading, and (2) a version of
the proposed amended pleading that shows - through redlining,
underlining, strikeouts, or other similarly effective
typographic methods - how the proposed amended pleading
differs from the operative pleading. If the court grants the
motion, the moving party must file and serve the amended
D. Minn. LR 15.1(b). Plaintiff did not file a copy of the
proposed amended pleading or a redline version as required by
the Local Rule. Accordingly, the Court denies Plaintiff's
Motion without prejudice to his ability to file a Motion to
Amend that complies with the Local Rules. Plaintiff is
directed to re-file his Motion to Amend with a copy of the
proposed amended complaint and a redline version that shows
“how the proposed amended pleading differs from the
operative pleading.” After Plaintiff re-files his
Motion to Amend, Defendant shall file its opposition to the
Motion to Amend consistent with the Local Rules or file a
letter indicating that Defendant does not oppose the Motion
Plaintiff's Motion for Appointment of Counsel, Plaintiff
seeks a referral to the Federal Bar Association's Pro
Se Project, asserting that he has certain disabilities
that require appointment of counsel in this civil action.
(Dkt. No. 24 at 16-18, 24-25.) Plaintiff's Motion for
Appointment of Counsel appears based in part on
Mathews v. Eldridge, 424 U.S. 319 (1976),
and partly based on the Americans with Disabilities Act
(“ADA”). “There is no constitutional right
to appointed counsel in civil cases.” Phillips v.
Jasper County Jail, 437 F.3d 791, 794 (8th Cir. 2006)
(citing Edington v. Missouri Dep't of Corr., 52
F.3d 777, 780 (8th Cir. 1995)). To the extent Plaintiff is
relying on the ADA, “there is no requirement under the
ADA that courts provide legal counsel for a person with
disabilities.” Douris v. New Jersey, 500
Fed.Appx. 98, 101 (3rd Cir. 2012); see also Pinson v.
Equifax Credit Information Servs. Inc., 315 Fed.Appx.
744, 749 (10th Cir. 2009) (“To the extent the
[plaintiffs] contend the ADA and Rehabilitation Act required
the court to appoint counsel on its own volition, we find no
support for the proposition.”); Reed v. Common
Bond, LLC, No. 18-CV-263-PP, 2019 WL 252037, at *3 (E.D.
Wis. Jan. 17, 2019) (“The [Eastern District of
Wisconsin] court acknowledges that the plaintiff is disabled,
but the law does not entitle her to a court-appointed lawyer
as an accommodation for those
Plaintiff's request for a referral to the Pro Se
Project, “the Court has no obligation to refer a pro se
litigant to the Pro Se Project.” Rickmyer v.
ABM Sec. Servs., Inc., No. CV 15-4221 (JRT/FLN), 2016 WL
1248677, at *5 (D. Minn. Mar. 29, 2016) (denying motion for
referral to the FBA Pro Se Project framed as ADA
accommodations request), aff'd, 668 Fed.Appx.
685 (8th Cir. 2016); see also Issaenko v. Univ. of
Minnesota, No. 13-cv-3605 (JRT/SER), 2016 WL 8198306, at
*9 (D. Minn. Jan. 25, 2016) (“[Plaintiff] argues the
‘Court has refused to refer this case to the Early
Settlement Conference program and allow additional time [for]
Plaintiff to respond to Defendant[s'] Motion, as
requested by a volunteer attorney acting for Plaintiff
through the Pro-Se Project.' Civil litigants
have no constitutional right to counsel, and therefore,
[Plaintiff] is not entitled to a referral to the Early
Settlement Conference Program.”), R&R
adopted, No. CV 13-3605 (JRT/SER), 2016 WL 1271470 (D.
Minn. Mar. 31, 2016).
“[i]n civil rights matters the court may, pursuant to
28 U.S.C. § 1915, ‘request' an attorney to
represent a party if, within the court's discretion, the
circumstances are such that would properly justify such a
request.” Mosby v. Mabry, 697 F.2d 213, 214
(8th Cir. 1982). Among the factors to be considered by the
district court in determining whether to appoint counsel in a
civil case are “the factual complexity of the issues,
the ability of the indigent person to investigate the facts,
the existence of conflicting testimony, the ability of the
indigent person to present the claims, and the complexity of
the legal arguments.” Phillips, 437 F.3d at
794. Here, Plaintiff has demonstrated his familiarity with
the underlying facts and his ability to litigate this matter,
including by filing a complaint, making various requests of
the Court via motions, filing a response and supporting
exhibits in opposition to Defendant's Motion to Dismiss,
citing various statutes and case law in his filings with the
Court, and filing a Motion to Amend Complaint. Accordingly,
the Court denies the Motion for Appointment of Counsel. The
Court will, however, consider reasonable requests for
extensions of time or other reasonable requests by Plaintiff
in this matter, including in connection with the Motion to
Dismiss (Dkt. No. 14) filed by Defendant State of Minnesota.
Plaintiff seeks several injunctions against Defendant State
of Minnesota and several other entities. In view of
Plaintiff's Motion to Amend Complaint and anticipated
re-filed Motion, the Court will defer deciding
Plaintiff's requests for injunctive relief.
on the files, records, and proceedings herein, IT IS
Plaintiff's Motion to Amend is DENIED WITHOUT
PREJUDICE. Plaintiff is directed to re-file his
Motion to Amend in a manner that complies with D. Minn. LR
15.1(b) within fourteen (14) days of this Order.
Plaintiff should attach to or include with his re-filed
Motion to Amend a copy of the proposed Amended Complaint and
a redline version that shows how the proposed amended
pleading differs from the operative pleading.
After Plaintiff re-files his Motion to Amend, Defendant shall
file its opposition to the Motion to Amend consistent with
the Local Rules or file a letter indicating that Defendant
does not oppose the Motion to Amend.
Plaintiff's Motion for Appointment of ...