Cleveland v. Walker et al

Filing 8

ORDER denying 3 Motion to Appoint Counsel; finding as moot 5 Motion for defendants to waive service of summons; granting 6 Motion for Leave to File amended complaint. Signed by Chief Judge David R Herndon on 10/02/08. (eed)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS BERNIE B. CLEVELAND, Plaintiff, vs. ROGER E. WALKER, JR., et al., Defendants. ) ) ) ) ) ) ) ) )

CIVIL NO. 08-cv-371-DRH

MEMORANDUM AND ORDER HERNDON, Chief Judge: Before the Court is Plaintiff's motion for leave to file an amended complaint (Doc. 6), accompanied by his proposed amended complaint. Federal Rule of Civil Procedure 15(a) dictates that leave to amend a pleading "shall be given whenever justice so requires," see Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir. 1995); in fact, the rule expressly grants a plaintiff one opportunity to amend his complaint as a matter of course before a responsive pleading is served. Accordingly, the instant motion is GRANTED; the Clerk shall FILE Plaintiff's proposed amended complaint. Plaintiff also requests that the Court appoint him counsel (Doc. 3). There is no absolute right to appointment of counsel in a civil case. Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975); Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971). When presented with a request to appoint counsel, the Court must make the following inquiries: "(1) has the ... plaintiff made a reasonable attempt to obtain counsel or effectively been precluded from doing so and (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself." Pruitt v. Mote, 503 F.3d647, 854-55 (7th Cir.

2007). With regard to the first step of the inquiry, there is no indication at all whether Plaintiff has attempted to obtain counsel or been effectively precluded from doing so. Therefore, Plaintiff's motion for the appointment of counsel is DENIED, without prejudice. Finally, Plaintiff asks that all defendants waive service of summons (Doc. 5). Whether a defendant chooses to waive service is an individual decision that the Court cannot force. Therefore, this motion is DENIED. IT IS SO ORDERED. DATED: October 2, 2008. /s/ DavidRHerndon CHIEF JUDGE UNITED STATES DISTRICT COURT

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