Larson et al v. Lake et al

Filing 105

ORDER denying 92 Motion to Appoint Counsel and 97 Motion to Reopen Discovery and to Change the Pretrial Scheduling Order (Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 1/22/2019. (SGK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Guy I. Greene and Hollis Larson,

Case No. 17-cv-3551 (NEB/ECW)

Plaintiffs,
v.

ORDER

Kelly Lake, et al.,
Defendants.

This matter comes before the undersigned on Plaintiffs’ Motion for the
Appointment of Counsel. (Dkt. No. 92.) Plaintiffs also brought a Motion to Reopen
Discovery and to Change the Pretrial Scheduling Order (Dkt. No. 97) as part of their
reply in support of the Motion for the Appointment of Counsel. For the reasons stated
below, the Court denies Plaintiffs’ requested relief.
Plaintiffs have made multiple requests for appointment of counsel, and all
previous requests having been denied. (See, e.g., Dkt. Nos. 20, 73, 80.) Pro se litigants
do not have a constitutional or statutory right to counsel in civil cases. See Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (citation omitted). Indeed, with exceptions
not relevant here, district courts lack statutory authority to formally appoint counsel—that
is, to “require an unwilling attorney to represent an indigent litigant”—in most civil
cases. Mallard v. U.S. Dist. Ct. for the Dist. of Iowa, 490 U.S. 296, 298 (1989); compare
18 U.S.C. § 3006A (providing authority to appoint counsel in criminal cases). Instead,
the Court “may request an attorney to represent any person unable to afford
counsel” in a civil case. 28 U.S.C. § 1915(e)(1) (emphasis added). The Eighth Circuit
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“has delineated certain criteria for district courts to consider in deciding whether to
recruit counsel, including the factual and legal complexity of the underlying issues, the
existence of conflicting testimony, and the ability of the indigent plaintiff to investigate
the facts and present his claims.” Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013)
(emphasis added) (citing Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006)).
Here, Plaintiffs claim they need counsel because they require assistance to
“investigate the facts,” want help with “considerable discovery,” and face conflicting
testimony regarding witnesses. (Dkt. No. 93 at 5-6.) Civil plaintiffs are not entitled
affirmative assistance from the Court in litigating their claims, including conducting
discovery. See Brown v. Cooper, No. CV 18-219 (DSD/BRT), 2018 WL 3360769, at *1
(D. Minn. July 10, 2018) (citing Baker v. Immanuel Med. Ctr., No. 8:06CV655, 2007 WL
2914547, at *2 (D. Neb. Oct. 3, 2007) (“Granting leave to proceed in forma pauperis does
not grant the right to affirmative assistance from the court in conducting discovery.”)).
Even assuming that the Court concludes Plaintiffs needed assistance with discovery,
which it does not, discovery in this matter closed on November 1, 2018, rendering
assistance from counsel in this regard mostly moot. (Dkt. No. 52.)
Plaintiffs have asked as part of their reply in support of the motion for the
appointment of legal counsel that the Court reopen discovery pursuant to Rule 16 of the
Federal Rules of Civil Procedure, on the basis that Defendants allegedly refused to
respond their discovery requests because they were untimely served, even though they
were allegedly served before November 1, 2018. (Dkt. No. 97 at 1.) The scheduling
order in this case was entered on February 21, 2018. (Dkt. No. 52.) The scheduling
order provides in relevant part:
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November 1, 2018 - All discovery of any kind shall be commenced in time
to be completed by this date.
(Dkt. No. 52 at 2 (emphasis in original).) 1
Scheduling orders pursuant to Rule 16(b)(1) “assure[ ] that at some point both the
parties and the pleadings will be fixed . . .” Fed. R. Civ. P. 16(b), advisory committee’s
note to 1983 amendment. Moreover, “Rule 16(b) assures that ‘[a] magistrate judge's
scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded . . . without peril.’” Archer Daniels Midland v. Aon Risk Services, Inc., 187
F.R.D. 578, 582 (D. Minn. 1999) (quoting Gestetner Corp. v. Case Equip. Co., 108
F.R.D. 138, 141 (D. Me. 1985)). Under Rule 16(b), “[a] schedule may be modified only
for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Similarly, Local
Rule 16.3 requires a party moving to modify a scheduling order to “establish good cause”

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This Court notes that Rule 33 (allowing for written interrogatories), Rule 34
(allowing written requests for the production of documents), and Rule 36 (allowing for
written requests for admissions) under the Federal Rules of Civil Procedure give a
responding party 30 days to respond. Plaintiffs have not said on which date their written
discovery requests were served, nor have they represented that they served their
discovery “in time to be completed” by November 1, 2018, as the scheduling order
requires. To the extent that Plaintiffs did not serve their written discovery requests on
Defendants in time to be completed by November 1, 2018 (i.e., 30 days before the
discovery cutoff of November 1, 2018, plus an additional 3 days if the service was via
mail), then Defendants would have no obligation to respond because the written
discovery would be outside of the scheduling order’s deadline requiring that the
discovery be served in time so that any response would be due on or before November 1,
2018. See Mallak v. Aitkin Cty., No. 13-CV-2119 (DWF/LIB), 2016 WL 8607391, at
*12 (D. Minn. June 30, 2016), aff’d, 2016 WL 8607392 (D. Minn. Sept. 29, 2016)
(citations omitted) (“[M]any courts, including this one, that have held that a discovery
request brought too close to the deadline for discovery is untimely, even when the
discovery request was brought before the discovery deadline.”). To the extent Plaintiffs
are asserting in good faith as part of their reply that they served the discovery in question
in time to be completed by November 1, 2018, they may bring a motion to compel
responses to that discovery that specifies the date of service.
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for the proposed modification. “The primary measure of good cause is the movant’s
diligence in attempting to meet the order’s requirements.” Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 716-17 (8th Cir. 2008) (citing Rahn v. Hawkins, 464 F.3d 813, 822
(8th Cir. 2006)). Rule 16(b) focuses on “the diligence of the party seeking to modify a
Scheduling Order, as opposed to the litany of unpersuasive excuses, inclusive or
inadvertence and neglect, which commonly undergird an untimely Motion to Amend.”
Scheidecker v. Arvig Enters., 193 F.R.D. 630, 632 n.1 (D. Minn. 2000) (citations
omitted).
It was incumbent on Plaintiffs to be familiar with the deadlines imposed by the
Court in its scheduling order. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d
852, 856 (8th Cir. 1996) (“In general, pro se representation does not excuse a party from
complying with a court’s orders and with the Federal Rules of Civil Procedure.”).
Plaintiffs have had over eight months to conduct discovery, yet apparently waited too late
to serve their written discovery on Defendants. Any assertion that they were unable to
serve written discovery or conduct other discovery in this case is disingenuous given
Plaintiffs’ apparent ability to file several motions with the Court over the same time
period. (See, e.g., Dkt. Nos. 54, 60, 71, 84.) The Court finds no good cause to extend the
discovery deadline in this case.
The remainder of Plaintiffs’ arguments in support of their request for the
appointment of counsel focuses on the complexity of the legal issues in this case, their
health issues and their lack of access to a law library and legal materials necessary to
prosecute their claims. (Dkt. No. 93 at 5-8; Dkt. No. 94.) Plaintiffs have demonstrated
throughout this litigation the ability to seek relief from the Court, having filed several
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motions and other requests. They have also has demonstrated the ability to cite legal
authority, as is evidence by the numerous case citations included in support of the as part
of the present Motion and have otherwise shown themselves capable of litigating this
case. There appear to be no indications (except for their own lack of diligence as it
relates to the Court’s scheduling order) that Plaintiffs suffer any impediment that is
unusual or extraordinary when compared to those encountered by other pro se litigants
who are confined in institutions within the State of Minnesota.
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that:
1.

Plaintiffs’ Motion for the Appointment of Counsel (Dkt. No. 92) is

DENIED; and
2.

Plaintiffs’ Motion to Reopen Discovery and to Change the Pretrial

Scheduling Order (Dkt. No. 97) is DENIED.

DATED: January 22, 2019

s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge

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