Rogers v. American Red Cross

Filing 31

ORDER finding as moot 13 Motion to Dismiss; denying 19 Motion to Appoint Counsel ; granting, as modified, 22 Motion to Amend/Correct. Rogers has until August 1, 2012 to revise his amended complaint and to file it with the Court. Signed by Judge D. P. Marshall Jr. on 7/18/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

MALCOLM R. ROGERS

v.

PLAINTIFF

No.4:11-cv-892-DPM

DEFENDANT

AMERICAN RED CROSS

ORDER
Since this Title VII lawsuit started last December, the parties have filed
many papers but we have not gotten very far. First, Rogers amended and
supplemented his complaint. The American Red Cross has moved to dismiss
both the original complaint and the amendment. Document No. 13. And
Rogers has moved the Court to appoint him a lawyer. Document No. 19. The
Red Cross opposes this request. Finally, Rogers has moved to amend a
second time and has filed a 70-page proposed complaint. Document No. 22.
The Red Cross opposes this motion too.
1.

Motion to Appoint Counsel.

Rogers has no statutory or

constitutional right to appointed counsel in this case. Chambers v. Pennycook,
641 F.3d 898,909 (8th Cir. 2011). "The court has a good deal of discretion to
determine whether representation is warranted given the nature of the case

and the litigants." Ibid.; see also 28 U.S.C. § 1915(e)(1). In making its decision,
the relevant factors the Court should consider are (1) Rogers's financial
resources; (2) his efforts to obtain representation; and (3) the merits of his
discrimination claim. Slaughter v. City ofMaplewood, 731 F.2d 587, 590 (8th Cir.
1984). At this early stage of the litigation, the Court cannot discern the merits
of Rogers's claims. The Court therefore denies his motion for appointed
counsel, Document No. 19, without prejudice to him refiling it once the case is
further down the road.
2. Motion to Amend & Motion to Dismiss. Rogers's complaint is

bouncing between extremes. The Red Cross moved to dismiss Rogers's
original complaint and first amendment because they are too conclusory and
do not state enough facts. In response, Rogers moved to amend his complaint
again and proposed a 70-page complaint full of facts.
The Court should, of course, freely allow leave to amend, but not when
the amendment would be futile. FED. R. CIV. P. 15(a)(2); Hammer v. City of
Osage Beach, Missouri, 318 F.3d 832, 844 (8th Cir. 2003). Rogers's claims for

abuse of due process, bad faith, violation of public policy, and negligent
infliction of emotional distress are futile on their face. And though the Court
doubts the viability of Rogers's claims for negligent retention, negligent

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training, and intentional infliction of emotional distress, it will reserve
judgment on those claims until it hears written argument from the parties.
Rogers has until 1 August 2012 to revise his amended complaint, leaving out
the four futile claims, and to file it with the Court. The Court also encourages
Rogers to trim down the facts alleged: it is not necessary to plead every fact
known that might support his case, but only the essential facts necessary to
support the remaining claims.

FED. R. Crv. P.

8(a)(2). At that point, the Court

expects the Red Cross to address more than just the sufficiency of Rogers's
pleading. It is time to address the legal merits of Rogers's particular claims
and whether each should or should not move forward. Whether Rogers has
any viable claims against the individuals needs detailed briefing too.

*

*

*

Motion for appointed counsel, Document No. 19, denied. Motion to
amend, Document No. 22, granted as modified; revised amended complaint
due by 1 August 2012. Motion to dismiss, Document No. 13, denied without
prejudice as moot.
So Ordered.
D.P. Marshall Jr.
/I
United States District Judge

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