Calloway v. Beasley et al

Filing 37

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay. Plaintiff's Motion for Extension of Time, or, in the Alternative, Appointment of Counsel (DN 33 ) is denied. Parties to be mindful of deadlines set by court (DN 36 ) and obligations under FRCP and LR. cc: Counsel, plaintiff pro se(JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
KIM V. CALLOWAY,
Plaintiff,
v.

CASE NO. 3:13-CV-410-CRS-CHL

RODERICK BEASLEY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S
MOTION FOR EXTENSION OF TIME, OR, IN THE ALTERNATIVE,
APPOINTMENT OF COUNSEL
This matter is before the Court on the motion (“Motion”) (DN 33) of Plaintiff Kim V.
Calloway (“Plaintiff”) for an extension of time to comply with an Order of the Court, or, in the
alternative, for appointment of counsel. Defendants, Officers Roderick Beasley, Steven Kelsey,
Jorge Soto-Perez, and Clayton Reeves (collectively “Defendants”), filed a response
(“Response”). (DN 35.) Plaintiff did not file a reply. This matter is now ripe for review. For
the following reasons, the Motion (DN 33) is DENIED.
BACKGROUND
On February 9, 2015, the Court entered an Order setting a date 1 for and requirements
related to a Rule 16 scheduling conference (“Rule 16 Order”). (DN 29.) The Rule 16 Order
required the parties to take the following actions: (1) meet and confer as contemplated by Rule
26(f) of the Federal Rules of Civil Procedure at least twenty-one days before the scheduling
conference; (2) file a written report of the Rule 26(f) planning meeting at least fourteen days
before the scheduling conference; (3) exchange initial disclosures pursuant to Rule 26(a)(1) at or

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The Rule 16 Order set the scheduling conference for March 4, 2015. In an order entered on February 12,
2015 (DN 30), the undersigned rescheduled the conference for April 7, 2015.

within fourteen days after the planning meeting; and (4) file a conference statement no later than
seven days prior to the conference. (Id. at 2-4.)
Pursuant to the Rule 16 Order (DN 29), on March 27, 2015, Defendants filed both Rule
26(a)(1) initial disclosures and a conference statement. (DN 31; DN 32.) On April 6, 2015,
Defendants filed a Rule 26(f) planning meeting report. (DN 34.) Defendants represented that
they mailed to Plaintiff a copy of their proposed plan on March 18, 2015, but did not receive any
response. (DN 34 at 1 n.1.)
On March 31, 2015, Plaintiff filed a motion styled, “Motion for extension of time.” (DN
33.) In the Motion, Plaintiff requests “an extension of time to comply with this Honorable
Court[’]s order entered on February 9, 2015,” that is, the Rule 16 Order. (See DN 33 at 1.) As
grounds for his request for an extension, Plaintiff states that he “has been under stress and duress
after being diagnosed with cancer;” that he would be undergoing surgery on April 16, 2015; and
that he “has not been mentally sounds enough” to comply with the Rule 16 Order. (DN 33 at 1.)
Plaintiff requests an extension of 45 days to meet the requirements of the Rule 16 Order (DN
29), or, in the alternative, he “specifically request[s] appointment of counsel to assist Plaintiff for
compliance only.” (DN 33 at 1.)
On April 7, 2015, Defendants filed their Response. (DN 35.) Defendants’ position is
that as there is no constitutional right to counsel in a civil lawsuit, the Court has discretion, but
not an obligation, to appoint counsel to a pro se plaintiff in a civil action. (DN 35 at 1.)
Defendants contend that in order to receive appointed counsel in this case, Plaintiff must
establish that “exceptional circumstances” exist. (Id. (citing Lavado v. Keohane, 992 F.2d 601,
605-606 (6th Cir. 1993)).) Defendants go on to argue that no exceptional circumstances exist
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that would justify appointment of counsel in this case because Plaintiff’s allegations relate to a
single event, and Plaintiff maintains only two causes of action, false arrest and illegal search.
(DN 35 at 2.) Moreover, Defendants maintain, “Plaintiff has generated a number of documents
in this case demonstrating that he is articulate, familiar with the workings of the legal system,
and that he is able to represent himself sufficiently.” (Id.) Plaintiff did not file a reply
On April 7, 2015, the Court conducted the Rule 16 scheduling conference (“Rule 16
Conference”).

The proceedings were recorded by a court reporter and memorialized in a

Memorandum of Rule 16 Scheduling Conference Order (“Scheduling Order”). (DN 36.) The
Court largely adopted the litigation plan proposed by Defendants, while being mindful of
Plaintiff’s medical condition and treatment. (DN 36 at 1-2; DN 34.) The Court, Plaintiff, and
counsel for Defendants discussed the Motion (DN 33) and the Court indicated that it would
decide the Motion by a subsequent opinion and order. (DN 36 at 2.) This is that opinion and
order.
DISCUSSION
The Court interprets the Plaintiff’s Motion as requesting appointment of counsel only to
assist him in complying with the Rule 16 Order (DN 29), as opposed to representation for the
duration of the lawsuit. (See DN 33 at 1 (“Plaintiff respectfully request[s] a 45 day extension of
time under which to comply with this Honorable Court[’]s order, or Plaintiff specifically
request[s] appointment of counsel to assist Plaintiff for compliance only”) (emphasis added).)
Plaintiff’s request for an extension of time to comply with the Rule 16 Order (DN 29) is
effectively moot based on recent events in this case. First, the portion of the Rule 16 Order (DN
29) requiring the parties to confer and prepare a report pursuant to Rule 26(f) is no longer
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relevant, given that the Rule 16 Conference has already been conducted. Second, the Court
already set an extended deadline of May 15, 2015 for Plaintiff to complete his initial disclosures.
(DN 36 at 1.) In setting this deadline, the Court was mindful of Plaintiff’s health.2 Finally, there
is no longer any need for Plaintiff to file a conference statement, as was required by the Rule 16
Order. (DN 29.) Again, the Rule 16 Conference has been conducted, and the Court largely
adopted the litigation plan proposed by Defendants. Based on the foregoing, it is clear that
Plaintiff no longer has a need for an extension of time to comply with the Rule 16 Order. (DN
29.) It follows, then, that he does not require the assistance of counsel in order to comply with
the Rule 16 Order.
Even if Plaintiff intended his request for appointment of counsel to apply to the duration
of the litigation, the Court finds that his request should be denied. Pro se litigants in civil
matters do not have a constitutional right to appointment of counsel. See, e.g., Lavado v.
Keohane, 992 F.2d 601, 605-606 (6th Cir. 1993) (citing Mekdeci v. Merrell Nat’l Labs., 711 F.2d
1510, 1522 n.19 (11th Cir. 1983)). “Title 28, United States Code, section 1915(e)(1) indicates
that court[-]enlisted assistance of counsel is not mandatory, but merely a matter of discretion.”
Sublett v. White, 2012 U.S. Dist. LEXIS 119613, *1 (W.D. Ky. 2012); see 28 U.S.C. §
1915(e)(1) (“The court may request an attorney to represent any person unable to afford
counsel”) (emphasis added). Appointment of counsel is “a privilege that is justified only by
exceptional circumstances.”

Lavado, 992 F.2d at 606 (citations omitted).

In determining

whether “exceptional circumstances” exist, courts examine “the type of case and the abilities of

2

Plaintiff requested an extension of 45 days. (DN 33 at 1.) The Rule 16 Order’s new deadline of May 15,
2015 is 45 days after the original deadline of March 31, 2015. (See DN 29 at 2-3 (setting deadlines for Rule 26(f)
meeting and initial disclosures); DN 36 (setting new deadline for Plaintiff’s initial disclosures).)

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the plaintiff to represent himself,” which generally involves “a determination of the complexity
of the factual and legal issues involved.” Id. (citations omitted).
In this case, Plaintiff’s claims are based on only two causes of action, false arrest and
illegal search. (See DN 28 (denying Defendants’ motion to dismiss and discussing Plaintiff’s
remaining claims).) The fact that there are numerous Defendants is of no moment, as all of
Plaintiff’s allegations relate to a single incident. The factual and legal issues involved in this
case are relatively simple and do not amount to “exceptional circumstances” that would weigh in
favor of appointing counsel. Significantly, Plaintiff has shown himself to have impressive
“ability[y] to represent himself.” Lavado, 992 F.2d at 606. Based on the progression of this case
to date, it appears that Plaintiff “is articulate and able to represent himself sufficiently at this
time.” Baker v. Boyd, 2012 U.S. Dist. LEXIS 132177, *4 (W.D. Ky. 2012). For example, the
Court granted Plaintiff’s motion to amend his complaint and denied Defendants’ motion to
dismiss Plaintiff’s false arrest claim. (See DN 20, DN 28.)

Finally, Plaintiff has not

demonstrated that he has attempted, and failed, to find counsel who would represent him on a
contingent-fee or pro bono basis. The Court concludes that Plaintiff is sufficiently well-equipped
to continue representing himself in this matter and that no other exceptional circumstances exist
that would support appointment of counsel.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for an extension of time
to comply with the Rule 16 Order, or, in the alternative, for appointment of counsel (DN 33), is
DENIED. The parties shall be mindful of the deadlines set by the Court (see DN 36) and their
obligations pursuant to the Federal Rules of Civil Procedure and the Local Rules.

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Appeal of this Order is subject to the terms and time limitations of Fed. R. Civ. P. 72(a)
and L.R. 72.2.
May 6, 2015

cc:

Colin Lindsay, MagistrateJudge
United States District Court

Counsel of record
Plaintiff, pro se

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