Reams v. Nielsen

Filing 40

RULING The court denies defendant's 32 Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6) without prejudice to the right to re-urge and allow Plaintiff to file an Amended Complaint on or before 5/24/2019. Should Plaintiff fail to amend his Complaint, this matter will be dismissed with prejudice. Signed by Chief Judge Shelly D. Dick on 4/30/2019. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
STEPHEN REAMS

CIVIL ACTION

VERSUS
18-389-SDD-EWD
KIRSTJEN M. NIELSEN, SECRETARY
OF DEPARTMENT OF HOMELAND
SECURITY
RULING
Local Rule 7(f) of the Middle District of Louisiana requires that memoranda in
opposition to a motion be filed within twenty-one (21) days after service of the motion.
In the present case, a Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6)1
was electronically filed by Defendant, Kirstjen M. Nielsen, Secretary of Department of
Homeland Security. Although Plaintiff, who is pro se, filed a timely Opposition2 to this
motion, his Opposition is unresponsive to the substantive arguments raised by Defendant
and only expresses his opposition to the Court’s refusal to appoint counsel for him in this
matter. Thus, it does not constitute a proper opposition under Rule 7(f).
The Magistrate Judge conducted a Spears hearing in this matter and also
addressed Plaintiff’s request for appointment of counsel.3 In a well-reasoned opinion, the

1

Rec. Doc. No. 32.
Rec. Doc. No. 38.
3
Rec. Doc. No. 10.
2

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Court explained why Plaintiff’s request for appointment of counsel was denied.4 Plaintiff
was also advised of his obligations in representing himself in a pro se capacity.5
Defendant’s Motion clearly outlines the pleading deficiencies in Plaintiff’s
Complaint. Rather than attempt to cure these deficiencies, Plaintiff continues to seek the
appointment of counsel although he fails to meet the exceptional circumstances standard.
The Court acknowledges that “pro se pleadings are held to less stringent standards than
pleadings drafted by lawyers,”6 and “pro se pleadings must be treated liberally.”7
Nevertheless, Plaintiff is advised that, “a pro se litigant is not ‘exempt ... from compliance
with the relevant rules of procedural and substantive law.’8 A pro se litigant is not entitled
to greater rights than would be a litigant represented by a lawyer.”9
Accordingly, based on the lack of substantive opposition to Defendant’s Motion, it
is deemed to be unopposed, and further, after reviewing the record, the Court finds that
the Motion has merit as a matter of law. However, considering Plaintiff’s pro se status,
and the fact that Plaintiff has not sought leave to amend his Complaint in this matter, the
Court will DENY Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6)10
without prejudice to the right to re-urge and allow Plaintiff to file an Amended Complaint

4

Rec. Doc. No. 13.
Id. at 6.
6
Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
7
U.S. v. Robinson, 78 F.3d 172, 174 (5th Cir.1996); Priester v. Lowndes County, 354 F.3d 414, 418 (5th
Cir. 2004).
8
NCO Financial Systems, Inc. v. Harper–Horsley, No.07–4247, 2008 WL 2277843 at *3 (E.D.La. May 29,
2008), quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).
9
Id., citing Birl, 660 F.2d at 593.
10
Rec. Doc. 32.
5

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on or before May 24, 2019. Should Plaintiff fail to amend his Complaint, this matter will
be dismissed with prejudice.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on April 30, 2019.

S

CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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