Pugh v. Dix et al

Filing 80

ORDER as to the following Motions: Motion to Amend Complaint 76 granting in part as to damages only, and denying in part as set out; Motion 77 for Reconsideration of appointment of counsel is DENIED; Motion 78 for a physical and mental examination is DENIED; Motion 79 to Continue is DENIED, as moot. Signed by Magistrate Judge Katherine P. Nelson on 6/14/10. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION CHRISTOPHER LENARD PUGH, Plaintiff, v. RICHARD DIX, et al., Defendants. ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 09-00016-KD-N

ORDER This action is before the undersigned on the following motions filed by plaintiff: (1) motion to amend the complaint (doc. 76); (2) motion for reconsideration (doc. 77) of the Order entered May 18, 2010 (doc. 70) denying plaintiff=s motion for appointment of counsel; (3) motion for an Order directing a physical and mental examination of the plaintiff (doc. 78) by an outside physician, and (4) motion for continuance of June 16, 2010 deposition. Upon consideration of these matters, it is ORDERED as follows: 1. Plaintiff=s motion to amend the complaint (doc. 76) is hereby denied, in part and

granted in part. To the extent Plaintiff seeks a remedy which is neither authorized or appropriate in this case, namely A[e]xpungement of all convictions, and charges@ (doc. 76, ex 1), that request is DENIED. See Heck v. Humphrey, 512 U.S. 477 (1994)("habeas corpus is the

exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though the claim may come within the literal terms of § 1983"). Plaintiff also seeks to add a claim for ADeclaratory damages@ in the amount of $500,000 To the extent plaintiff also seeks $5,000,000.00 in AExemplary damages@ and $1,000,000.00 in

ACompensatory damages@ as well as $5,000,000.00 in APhysical damages.@ It is the practice of the court that an amended complaint must restate all allegations and claims, so that it supercedes the original complaint. The alternative practice of allowing piecemeal amendment leads to unnecessary confusion in determining the current claims and allegations. Plaintiff=s motion to amend as to damages only is GRANTED, but he must file a new complaint on the court's form incorporating the new damages allegations. No other changes are authorized, and his amended complaint must be filed no later than July 7, 2010. 2. Plaintiff=s motion for reconsideration (doc. 77) of the Order entered May 18, 2010

(doc 70) denying plaintiff=s motion for appointment of counsel, essentially a second motion for appointment of counsel, is hereby DENIED. As stated previously by the Court, plaintiff has more than adequately demonstrated an ability to communicate the factual and legal predicates of his claims. See Mekdeci v. Merrill National Lab., 711 F.2d 1510, 1522, n. 19 (11th Cir. 1983) (A[T]here is no constitutional or statutory right to effective assistance of counsel on a civil case.@). Moreover, Aplaintiff has not demonstrated that his case present[s] exceptional circumstances warranting the appointment of counsel.@ Tipps v. Leonard, 2009 WL 1362831, *1 (5th Cir. May 15, 2009) citing Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). Every case filed pro se involves the likelihood that plaintiff will be deposed, if the action is allowed to proceed to that stage. 3. Plaintiff=s motion for an Order directing a physical and mental examination of the

plaintiff (doc. 78) by an outside physician is hereby DENIED. The motion is premature inasmuch as defendants have not yet filed their Answer and Special Report. At such time, it will be incumbent upon the plaintiff to renew his motion and therein demonstrate that he is

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entitled to such an examination without paying the expense for such an examination. 4. Plaintiff next moves the Court for an order continuing his deposition, presently

scheduled for June 16, 2010 pending the Court=s ruling on his motion to reconsider the request for appointment of counsel. As set out herein, the pending motion has been denied. Accordingly, plaintiff=s motion for continuance is DENIED. as moot. DONE this 14th day of June, 2010. /s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

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