Sanders v. Berkshire Properties et al

Filing 42

MEMORANDUM. Signed by Judge Ellen L. Hollander on 1/7/2015. (c/m 1/7/15 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
HAZEL L. SANDERS,
Plaintiff,
v.

Civil Action No. ELH-13-02590

ENOS CONTRACTORS et al.,
Defendants.
MEMORANDUM
On September 6, 2013, plaintiff Hazel L. Sanders, who is self-represented, filed suit
against defendants Enos Contractors, Tracy Richards, and Berkshire Property Advisors, LLC,
alleging that they have committed violations of the Fair Housing Act of 1968, 42 U.S.C. §§ 3601
et seq. ECF 1.1 On December 31, 2014, plaintiff filed two motions: 1) a “Request for Extension
for Production of Documents by the Defendants,” requesting an extension of time for Sanders to
respond to defendants’ discovery request (ECF 39); and 2) a motion to appoint counsel (ECF
40). Plaintiff supplemented her motion to appoint counsel on January 5, 2014 (ECF 41), with a
letter repeating her arguments in the first motion and a letter from her doctor (ECF 41-1).
No hearing is needed to resolve the motions. See Local Rule 105.6. For the reasons that
follow, I will deny both motions.

Plaintiff’s Complaint names “Berkshire Properties,” “Enos Contractors,” and “Tracy
Richards.” ECF 1. “Berkshire Properties Advisors, LLC” answered the summons Ms. Sanders
directed to “Berkshire Properties.” See ECF 5, 8 (summons); ECF 10 (answer). Plaintiff never
successfully served an entity called “Berkshire Properties,” and all claims against “Berkshire
Properties” were dismissed on December 4, 2014, under Fed. R. Civ. P. 4(m). ECF 38.
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I. The Motion for Extension
Plaintiff’s motion for an extension states as follows, ECF 39: “I am respectfully asking
the court for an extension of time for production of documents that the defendants are requesting
because I am not represented by counsel. I need time to retain counsel which I am still trying to
do. Or time to prepare because I am acting pro se at this point.”
As stated, plaintiff filed suit in September 2013. ECF 1. Therefore, she has had more
than a year to obtain counsel.
At the outset, plaintiff asked the Court to appoint counsel. ECF 3. The motion was
denied, for the reasons stated in my Order (ECF 14).
On April 17, 2014, plaintiff renewed her request for appointment of counsel. ECF 15. At
about the same time, on April 24, 2014, a Scheduling Order was issued for this case. See ECF
16. It set a discovery deadline of September 8, 2014. Id. at 3. In that Order, I advised the
parties to submit any request to change any deadline established by the schedule, in writing, no
later than May 9, 2014. Id. at 2. The Order furthered advised that any requests submitted after
that date would only be authorized “for good cause shown.” Id. On May 8, 2014, plaintiff asked
the court to modify the Scheduling Order, and “to consider an extension of time,” without further
detail, explaining that she needed “more time to retain legal counsel.” ECF 17. The same day, I
denied the request for appointment of counsel, but granted plaintiff’s renewed request for an
extension, and extended all deadlines in the Scheduling Order by six weeks. ECF 18.
On October 21, 2014, defendant Richards moved for an extension of the discovery
deadline until February 24, 2015. ECF 32, ¶ 9. The motion was joined by Sanders. Id. ¶ 8. In

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light of the fact that Richards had been served with the Complaint on July 24, 2014, I granted the
motion. ECF 33.
Under Federal Rule of Civil Procedure 16(b)(4), a “schedule may be modified only for
good cause and with the judge’s consent.” “‘Properly construed, “good cause” means that
scheduling deadlines cannot be met despite a party’s diligent efforts.’” Jones v. Hoffberger
Moving Servs. LLC, JKB-13-535, 2014 WL 6892164, at *2 (D. Md. Dec. 3, 2014) ((quoting
Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D. Md. 1999)
(quoting Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997));
accord, e.g., Kolb v. ACRA Control, Ltd., 88 F. Supp. 3d 515, 527 (D. Md. May 16, 2014)
(holding no good cause shown where no showing of efforts to meet deadline).
As noted, the parties’ discovery deadlines have previously been extended. The current
discovery deadline of February 26, 2015 (ECF 33) is more than six weeks away.
The Court appreciates that Ms. Sanders has submitted her motion for extension of time
well in advance of the deadline. However, Ms. Sanders has not shown why diligent efforts over
the next six weeks cannot suffice to meet the deadline. Indeed, there is no good cause to modify
the schedule. Therefore, the motion (ECF 40; ECF 41) is denied.
II. Request for Counsel
As noted, in September 2013, and again in April 2014, plaintiff asked the Court to
appoint an attorney for her. See ECF 3, ECF 15. She argued that she could not afford counsel
because she “is a disabled senior on a fixed income.” ECF 3. I denied plaintiff’s initial motion,
finding that Ms. Sanders had “demonstrated the wherewithal either to articulate the legal and
factual basis of her claims herself or to secure meaningful assistance in doing so,” and that the

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“issue pending before the Court is not unduly complicated.” ECF 14 at 1-2. Therefore, I found
there were no “exceptional circumstances” warranting appointment of counsel. Id. Plaintiff
moved the Court to reconsider this ruling, see ECF 15, and the Court denied that motion as well,
for the reasons previously stated. ECF 18.
In her recent requests (ECF 40, 41), plaintiff acknowledges the high standard set for
appointment of counsel. She states: “I realize that there has to be exceptional circumstances to
appoint counsel in civil cases.” ECF 40 at 1. She explains that her situation is exceptional for
“medical reasons.” Id. Specifically, she asserts that the stress she is experiencing in relation to
this case is causing her to have high blood pressure. Id. In support of her request, plaintiff
submitted a letter from Abeda Ali Khan, M.D., which states: “She has been under stress which
has possibly been aggravating her medical condition. She needs counsel to represent her in
court.” ECF 41-1 at 1. Plaintiff also states: “For the last several months I have made every
effort to retain counsel to represent me to no avail.” ECF 40 at 1.
Under 28 U.S.C. § 1915(e)(1), a court of the United States may request an attorney to
represent any person unable to afford counsel, e.g., a person proceeding in forma pauperis, as
Ms. Sanders is here. See ECF 4 (order granting motion to proceed in forma pauperis). But, a
federal district court judge=s power to appoint counsel under 28 U.S.C. ' 1915(e)(1) is a
discretionary one, and may be considered where an indigent claimant presents exceptional
circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see also Branch v. Cole,
686 F.2d 264, 266 (5th Cir. 1982). The question of whether such circumstances exist in a
particular case hinges on the characteristics of the claim and the litigant. See Whisenant v. Yuam,
739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. District
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Court, 490 U.S. 296, 298 (1989). “If it is apparent to the district court that a pro se litigant has a
colorable claim but lacks the capacity to present it, the district court should appoint counsel to
assist him.” Whisenant, 739 F.2d at 163.
Upon careful consideration of the motion, and plaintiff’s previous filings, the Court finds,
again, that Ms. Sanders has demonstrated the wherewithal to articulate the legal and factual basis
of her claims or to secure meaningful assistance in doing so. She has, for example, correctly
applied the “exceptional circumstances” standard to her renewed motion for appointment of
counsel. See ECF 40. Moreover, Ms. Sanders has not persuaded the Court that stress resulting
from this case is in fact causing any medical problems, or, if it is, that these problems rise to the
level of “exceptional circumstances.” The one piece of evidence plaintiff provides states only
that stress has “possibly been aggravating” Ms. Sanders’s “medical condition,” see ECF 41-1
(doctor’s letter) (emphasis added), which Ms. Sanders explains is her high blood pressure. See
ECF 41. Therefore, there are no exceptional circumstances that would warrant the appointment
of an attorney to represent plaintiff under § 1915(e)(1) at this time. See, e.g., Dire v. United
States, 990 F. Supp. 2d 583, 586 (E.D. Va. 2013) (“To be sure, poverty, legal unsophistication,
and lack of education are circumstances encountered by many prisoners who are nonetheless
capable of filing [habeas] petitions without the assistance of counsel.”).
An Order follows.

Date: January 7, 2015

/s/
Ellen Lipton Hollander
United States District Judge

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