THOMAS v. WALKER et al
ORDER denying 27 Motion to Appoint Counsel; denying as moot 19 Motion to file an answer; denying 21 Motion for Default Judgment; granting 23 Motion to Withdraw as Attorney. Attorney DAVID S GROSSMAN terminated; granting 24 Motion to Amend/Correct; granting 25 Motion to Amend/Correct. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 5/10/17. (AGH)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JESSE RONALD THOMAS,
Sergeant GERALD WALKER, et al., :
CASE NO. 5:16-CV-438-LJA-MSH
Currently pending are Plaintiff’s motions requesting that the Court order
Defendants to file an answer (ECF No. 19), for default judgment (ECF No. 21), to amend
(ECF No. 24, 25), and to appoint (ECF No. 27).1 Plaintiff’s motion for an answer is
denied as moot—without discussion—since Defendants filed an Answer on March 20,
2017. (ECF No. 20.) Similarly, Plaintiff’s motion for default judgment is denied as
Defendants timely answered. Plaintiff’s motion to appoint is denied and his motions to
amend are granted as explained below.
Motion for Default Judgment
Plaintiff moves for default judgment because he believes that Defendants failed to
timely answer or otherwise respond to his Complaint. See Letter 1, Mar. 25, 2017, ECF
No. 21. Service was ordered in this case on January 12, 2017. (ECF No. 13.) The
Process Receipt and Return and Waiver of Service of Summons were not mailed until
Also pending is defense counsel’s motion to withdraw as attorney (ECF No. 23). Since
replacement counsel has entered an appearance, that motion is granted.
January 17, 2017. (ECF No. 15.) Defendant Walker filed his waiver of service on
February 28, 2017 (ECF No. 19). Defendants then filed an answer by the sixty-day
deadline assuming waiver of service—March 20, 2017. (ECF No. 20.)
Rule 55 of the Federal Rules of Civil Procedure provides that a clerk “must enter
[a] party’s default” when that party “failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise.” Federal Rules of Civil Procedure Rule 4 covers the
issue of service. Rule 4(d) states that when a waiver of service is requested, as was in
this case, a defendant must be given “a reasonable time of at least 30 days after the
request was sent” to return the waiver. Fed. R. Civ. P. 4(d)(1)(F). Additionally, if a
defendant files a waiver, he has “60 days after the request was sent” to file an answer or
responsive pleading to the complaint. Fed. R. Civ. P. 4(d)(3).
As outlined above, Defendants timely filed their answer to the Complaint on
March 20, 2017. Defendants are thus not in default. Plaintiff’s letter motion seeking
default (ECF No. 21) is denied.
Motion to Appoint Counsel
Plaintiff mailed a letter to the Court on April 23, 2017 which was docketed as a
motion for appointment of counsel. (ECF No. 27.) This is Plaintiff’s second request for
See Mot. for Appointment of Counsel, ECF No. 3.
previously explained to Plaintiff, under 28 U.S.C. § 1915(e)(1), the Court “may request
an attorney to represent any person unable to afford counsel.” There is, however, “no
absolute constitutional right to the appointment of counsel” in a § 1983 lawsuit. Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Appointment of counsel is
a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d
15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court
considers, among other factors, the merits of Plaintiff’s claims and the complexity of the
issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc). The facts
stated in Plaintiff’s Complaint are not complicated, and the law governing Plaintiff’s
claims is neither novel nor complex. Plaintiff’s renewed motion to appoint counsel (ECF
No. 27) is accordingly denied.
Motions to Amend
Plaintiff currently has two motions to amend pending. In the first, filed April 2,
2017, he seeks leave to amend to correct perceived deficiencies in his Complaint. Mot. to
Am. 2, ECF No. 24. This motion does not contain a proposed amended complaint.
Plaintiff then filed a second motion to amend on April 11, 2017, in which he adds
additional factual allegations—primarily concerning exhaustion—and attaches two
grievance receipts. Second Mot. to Am. 3, 5-7, ECF No. 25. Both of these motions were
filed within twenty-one days after service of the Answer. Since Plaintiff’s first motion to
amend did not contain a proposed amended complaint, the Court construes the two
motions together and grants Plaintiff’s request to amend as a matter of course under
Federal Rule of Civil Procedure 15(a)(1)(B). The allegations in the Amended Complaint
filed on April 11, 2017, and the documents attached thereto, shall be considered in this
case. No preliminary review of Plaintiff’s Amended Complaint is necessary at this time
as Plaintiff does not add any new claims or parties.2
For the reasons explained above, Plaintiff’s motion to answer (ECF No. 19),
motion for default (ECF No. 21), and motion to appoint (ECF No. 27) are denied.
Plaintiff’s motions to amend (ECF No. 19, 24) are granted.
SO ORDERED, this 10th day of May, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
The Court notes that Plaintiff corrected Defendant Sumpter’s name in the Amended
Complaint—he has previously been referred to as “Sumpter Thomas” instead of “Thomas
Sumpter.” The Clerk is directed to correct Defendant Sumpter’s name on the docket.
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