Coad v. Waters et al

Filing 39

ORDER denying without prejudice 36 Motion to Amend; denying 37 Motion to Appoint Counsel ; denying without prejudice 22 Motion to Amend. By Magistrate Judge Craig B. Shaffer on 11/10/2011. (Attachments: # 1 copy of unpublished case) (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01564-PAB-CBS
JOHN STERLING COAD,
Plaintiff,
v.
TRAVIS WATERS, medical supervisor at C.T.C.F. prison, individually and in his official
capacity,
Defendant.
________________________________________________________________________
ORDER
_______________________________________________________________________
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on: (1) Mr. Coad’s request to amend his
complaint (filed August 11, 2011) (Doc. # 22); (2) Mr. Coad’s “Motion to Amend Complaint”
(filed November 8, 2011) (Doc. # 36); and (3) Mr. Coad’s request for appointed counsel
(filed November 8, 2011) (Doc. # 37). Pursuant to the Order of Reference dated August
10, 2011 (Doc. # 19) and the memoranda dated August 16, 2011 and November 9, 2011
(Docs. # 23 and # 38), these matters were referred to the Magistrate Judge. The court has
reviewed the matters, the entire case file, and the applicable law and is sufficiently advised
in the premises.

1.

Motion to Amend
Mr. Coad seeks to amend his Amended Complaint to include additional Defendants

“and to describe their involvement.” (See Docs. # 22 and # 36). Mr. Coad may amend his
“pleading once as a matter of course . . . within: (A) 21 days after serving it, or (B) if the
pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.” Fed. R. Civ. P. 15(a). While no responsive pleading or Rule 12
motion has yet been filed, Mr. Coad has already amended his Complaint once. Further,
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Mr. Coad has not submitted a copy of his proposed Second Amended Complaint. The
court may deny a motion to amend a complaint for failure to submit the proposed amended
pleading. See Lambertson v. Utah Dept. of Corrections, 79 F.3d 1024, 1029 (10th Cir.
1996) (district court did not abuse its discretion in denying plaintiff's motion to amend for
failure to provide a copy of the proposed amended pleading, among other things); Bownes
v. City of Gary, Indiana, 112 F.R.D. 424, 425 (N.D. Ind. 1986) (“common sense” dictates
that a party seeking leave to amend should accompany his motion with a copy of the
proposed amended complaint); Williams v. Wilkerson, 90 F.R.D. 168, 170 (E.D. Va. 1981)
(where plaintiff sought leave to amend, a copy of the proposed amended pleading must
be attached to the motion); Brown v. Harris, 2006 WL 3833938 at * 2 (D. Colo. Dec. 28,
2006) (concluding “that it is entirely appropriate to require Plaintiff to set forth all of his
original and supplemental allegations and claims in a single document”) (citation omitted).1
The court will deny without prejudice Mr. Coad’s request to amend his pleading and permit
Mr. Coad to refile his request to amend, accompanied by a copy of his proposed second
amended pleading.

2.

Motion for Appointment of Counsel
Mr. Coad was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. §

1915 on June 22, 2011. (See Doc. # 3). Indigent civil litigants have no constitutional or
statutory right to be represented by a lawyer. Merritt v. Faulkner, 697 F.2d 761, 763 (7th
Cir. 1983). Pursuant to 28 U.S.C. § 1915(e)(1), the court “may request an attorney to
represent any person unable to afford counsel.” See also Johnson v. Howard, 20 F. Supp.
2d 1128, 1129 (W.D. Mich. 1998) (a court may request counsel to represent an indigent
plaintiff in an “exceptional case”). However, § 1915(e)(1) does not authorize “compulsory
assignments of attorneys” or “coercive appointments of counsel.” Mallard v. United States
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A copy of this unpublished decision is attached to this Order.
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District Court for the Southern Dist. of Iowa, 490 U.S. 296, 300-310 (1989).
Whether to request counsel is left to the sound discretion of the trial court. Rucks
v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). “[T]he district court has broad
discretion to appoint counsel for indigents . . . , and its denial of counsel will not be
overturned unless it would result in fundamental unfairness impinging on due process
rights.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (applying 28 U.S.C. §
1915(d), amended and renumbered as § 1915(e)(1)) (internal quotation marks and citation
omitted). In deciding whether to request counsel for an indigent civil litigant, the district
court should evaluate "the merits of a [litigant’s] claims, the nature and complexity of the
factual issues, and the [litigant’s] ability to investigate the facts and present his claims."
Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted).
"The burden is on the applicant to convince the court that there is sufficient merit to his
claim to warrant the appointment of counsel." Hill, 393 F.3d at 1115 (citation omitted).
"Only in those extreme cases where the lack of counsel results in fundamental unfairness
will the district court's decision be overturned." Hill, 393 F.3d at 1115 (citation omitted).
The court has considered Mr. Coad’s request for appointed counsel and the
appropriate factors. As a pro se litigant, Mr. Coad is afforded a liberal construction of his
papers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Mr. Coad has thus far adequately
presented his claims unaided by counsel. Contrary to Mr. Coad’s characterization, the
issues in the case are not particularly complex. Mr. Coad’s concerns regarding limited
access to the legal materials may be addressed by extensions of time, as needed. Mr.
Coad’s concerns regarding a “trial in this case, . . . conflicting testimony,” presentation of
evidence, and cross-examination of witnesses are premature at his stage of the litigation.
Mr. Coad has not presented and the court concludes that there is not an adequate basis
for the court to request counsel to volunteer to represent him.

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Accordingly, IT IS ORDERED that:
1.

Mr. Coad’s request to amend his complaint (filed August 11, 2011) (Doc. #

22) is DENIED WITHOUT PREJUDICE.
2.

Mr. Coad’s “Motion to Amend Complaint” (filed November 8, 2011) (Doc. #

36) is DENIED WITHOUT PREJUDICE.
3.

Mr. Coad may refile a request to amend his Amended Complaint

accompanied by a copy of his proposed Second Amended Complaint.
4.

Mr. Coad’s request for appointed counsel (filed November 8, 2011) (Doc. #

37) is DENIED.
DATED at Denver, Colorado, this 10th day of November, 2011.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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