Larson et al v. Lake et al

Filing 75

ORDER granting 54 Motion to amend the complaint; granting 55 Application of Hollis Larson to Proceed in District Court without Prepaying Fees or Costs; denying 60 Motion for payment of fees and costs. See order for details. (Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 7/9/2018. (BJP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Guy I. Greene, and Hollis Larson,

Case No. 0:17-cv-3551-SRN-KMM

Plaintiffs,
ORDER

v.
Kelly Lake, et al.,
Defendants.

This matter is before the Court on the “Notice of Additional Parties” filed by
the Plaintiff Guy I. Greene on March 9, 2018, which seeks to add Hollis Larson as an
additional plaintiff to the action. (Mot. to Am., ECF No. 54.) Mr. Larson has also filed
a motion for leave to proceed in forma pauperis. (IFP Application, ECF No. 55.) This
matter is also before the Court on Mr. Greene’s “Motion for Payment of Fees and
Costs,” which asks the Court to appoint experts and require the defendants or the
State of Minnesota to pay for such experts’ assistance. (Fee Mot., ECF No. 60.) For
the reasons below, the Court grants the request to add Mr. Larson as a plaintiff, grants
Mr. Larson’s IFP application, and denies Mr. Greene’s motion for appointment of
experts and payment of their fees.
I.

Motion to Amend and IFP Application
When this case was originally filed, Hollis Larson was one of two named

plaintiffs alongside Guy Greene. Like Mr. Green, Mr. Larson is currently confined at
the Minnesota Sex Offender Program’s (“MSOP”) facility in Moose Lake, Minnesota.
In their original complaint, both Mr. Larson and Mr. Green made allegations against
various officials relating to the conditions they experienced at the Carlton County Jail
during their respective periods of confinement there. (Compl., ECF No. 1.) However,

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on August 23, 2017, because Mr. Larson qualified as a “prisoner” within the meaning
of the Prison Litigation Reform Act, 28 U.S.C. § 1915, the Court explained that he
would have to pay the full filing fee in installments and ordered Mr. Larson to pay an
initial partial filing fee. (Order (Aug. 23, 2017), ECF No. 7.) Seven days after the
Court issued that Order, Mr. Larson filed a notice of voluntary dismissal without
prejudice indicating that he had elected not to prosecute this case. (Notice of
Voluntary Dismissal, ECF No. 8.) The dismissal of Mr. Larson’s claims was automatic
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
Mr. Larson has apparently had a change of heart and wants to again be a party
to this litigation. In the Notice of Additional Parties, Mr. Greene and Mr. Larson
assert that Mr. Larson “will be added as a named plaintiff in this case.” (Mot. to Am.
at 1.) Mr. Larson signed the Notice of Additional Parties. (Id. at 2 (including
Mr. Larson’s signature in the “Certification of Service” section).) The Notice also
states that “[t]he Complaint in this case does not need to be amended to include
Mr. Larson’s claims as they remain in Mr. Greene’s Amended Complaint.” (Id. at 1.)
Mr. Larson filed a new application to proceed in forma pauperis and an affidavit in
support of his request for IFP status. (IFP Application, ECF No. 55; Larson Aff. in
Supp. of IFP Application, ECF No. 56.) The Court construes the Notice of
Additional Parties as a motion to further amend the complaint to add Mr. Larson as a
plaintiff.
The question now is whether to allow Mr. Larson back into the case as a
second pro se litigant litigating his own claims against the Carlton County Defendants
alongside Mr. Greene’s claims. The Court treats this request as a motion for leave to
amend the pleadings under Federal Rule of Civil Procedure 15(a)(2). Under this Rule,
leave to amend should be freely given “when justice so requires.” Id. “However, there
is no absolute right to amend and a finding of ‘undue delay, bad faith, or dilatory
motive, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the non-moving party, or futility of amendment’ may be grounds

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to deny a motion to amend.” Doe v. Cassel, 403 F.3d 986, 991 (8th Cir. 2005) (quoting
Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 908 (8th Cir. 1999)).
The Carlton County Defendants1 also responded to the motion and opposed
the request to have Mr. Larson deemed a plaintiff in this litigation again. (Defs.’
Mem., ECF No. 58.) They point out that Mr. Greene cannot bring claims on behalf of
any other party and that Mr. Larson’s claims have already been dismissed. Therefore,
the Carlton County Defendants argue Mr. Larson’s claims do not, in fact, “remain in
Mr. Greene’s Amended Complaint” as asserted in the motion to amend. (Defs.’ Mem.
at 3–4.)
The Court concludes that leave to amend should be granted here for three
reasons. First, although the Carlton County Defendants are correct that Mr. Larson’s
claims were previously dismissed and that Mr. Greene (a non-lawyer) cannot represent
the interests of anyone other than himself, this does not answer the question whether
leave to amend should be granted. The Court is not persuaded that leave to amend
should be denied based on this argument.
Second, the First Amended Complaint already contains a substantial list of
allegations regarding Mr. Larson’s own experience at the Carlton County Jail. Mr.
Greene could not advance those claims on his own, but Mr. Larson has essentially
adopted them by signing off on the motion to amend and asking that the First
Amended Complaint be treated as though it contains his own claims.
Third, there is no basis in the record to deny leave to amend based on undue
delay, bad faith, dilatory motive, failure to cure deficiencies by previous amendments,
undue prejudice, or futility. The Carlton County Defendants raised none of these
issues in their response to the motion to amend, and the Court sees no basis for such
concerns.
The Carlton County Defendants include Kelly Lake, Paul Coughlin, Brian
Belich, Dave Kamunen, Jason Wilmes, Cammi Werner, and Travis Warnygora.

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Accordingly, the First Amended Complaint is deemed amended to include
Hollis Larson as a plaintiff in this litigation. The First Amended Complaint need not
be refiled and the Carlton County Defendants are not required to file and serve an
amended answer. In addition, based on his IFP Application and supporting affidavit
the Court concludes that Mr. Larson has demonstrated he is financially eligible to
proceed in forma pauperis in this litigation. Therefore, the IFP application is granted.
II.

Motion for Payment of Fees and Costs
In the motion for payment of fees and costs, Mr. Greene asks the Court to

appoint expert witnesses pursuant to Federal Rule of Evidence 706 and to require the
Carlton County Defendants, the State of Minnesota, or both to pay for expert witness
fees and expenses. (Fee Mot.) Mr. Greene asserts that although he does not yet know
“the precise extent of the required expert testimony in this case,” he “anticipate[s] that
he will need to provide expert testimony on at least the following topics: 1) the failure
of the Carlton County Jail to establish policies and procedures that comport with
constitutional protections, 2) the problems associated with the current jail and the
requirements to create constitutionally acceptable conditions of confinement.” (Id.
at 1.) Specifically, Mr. Greene asserts that he seeks expert witness fees and deposition
expenses related to “the services of a licensed psychologist and/or psychiatrist and an
expert on prison/jail conditions and how they affect detainees.” (Id. at 4.) In support
of his request that the Defendants must advance the fees and costs of any expert
witnesses, Mr. Greene cites U.S. Marshals Service v. Means, 741 F.2d 1053 (8th Cir.
1984), and notes that he has been granted permission to proceed IFP and cannot
afford to cover the costs of expert witnesses himself. He argues that this case presents
“compelling circumstances” to require Defendants to advance experts fees and costs.
(Id. at 2–3.)
Rule 706 allows the Court to appoint expert witnesses “[o]n a party’s motion or
on its own.” Fed. R. Evid. 706(a). The Rule also allows the Court to set a reasonable
compensation for such an expert and require it to be paid “by the parties in the
proportion and at the time that the court directs—and the compensation is then
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charged like other costs.” Fed. R. Evid. 706(c)(2). The decision whether to appoint an
expert under the Rule is committed to the district court’s discretion. Rachel v. Troutt,
820 F.3d 390, 397 (10th Cir. 2016). “[T]he exercise of Rule 706 powers is rare under
virtually any circumstances.” 29 Charles Alan Wright, et al., Federal Practice and Procedure
§ 6304 (2d ed. April 2018 update).
In Means, the Eighth Circuit Court of Appeals held that a district court could
“order the United States, as a party, to advance the fees and expenses of lay and
expert witnesses called by the court.” 741 F.2d at 1059. However, the court “strongly
emphasize[d] that this discretionary power is to be exercised only under compelling
circumstances.” Id. In Means, such compelling circumstances were present where the
government initiated a case as a plaintiff against indigent defendants who were
allegedly illegally occupying land in a national forest. Id. at 1055. In the middle of trial,
when the defendants attempted to subpoena trial witnesses, the United States
Marshals Service refused. Id. The district court ordered the Marshals Service to serve
the subpoenas and advance the witness fees. Id. In reaching its conclusion that the
district court acted within its discretion, the Eighth Circuit emphasized that it was the
government that initiated the case against indigent defendants:
[W]here the United States brings an action and its opposition lacks funds
to present indispensable defense testimony, the government plaintiff
may, under the limited circumstances presented in this case, be required
by the district court to advance expenses for these witnesses subject to a
final award of costs to the prevailing party at the conclusion of the
litigation.
Id. at 1059.
Having considered the standards for appointment of a neutral expert under
Rule 706 and the Eighth Circuit’s decision in Means, the Court finds that appointment
of an expert is unwarranted. At this stage of the litigation there has been no showing
that Mr. Greene will require the testimony or analysis of a mental-health expert or an
expert on “prison/jail conditions” to advance his claims. This does not appear to be a
case in which Mr. Greene’s claims would be unable to survive summary judgment
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unless he is able to provide evidence from an expert that he cannot afford. See Spann v.
Roper, 453 F.3d 1007, 1009 (8th Cir. 2006) (reversing district court’s order granting
summary judgment to defendants and observing that it was “incongruous that the
district court denied Spann’s motion for an expert witness and then granted summary
judgment in part based on Spann’s failure to provide verifying medical evidence that
the delay [in receiving medical attention to deal with a known medication overdose]
had detrimental effects”).
The Court also finds that Mr. Greene has failed to show that his underlying
claims, which concern allegedly sub-standard conditions at the Carlton County Jail
and alleged retaliatory acts by County employees, are sufficiently complicated to
require the testimony or report of an independent mental-health expert or an expert
on conditions at correctional institutions. See Rachel, 820 F.3d at 397–98 (affirming
district court’s denial of Mr. Rachel’s motion to appoint a medical expert in a case
involving alleged medical neglect, reasoning that “the nature of Mr. Rachel’s
underlying claim is not sufficiently complicated to require an independent medical
expert”).
Finally, the Court finds that this case does not present uniquely compelling
circumstances akin to those that were present in Means, and therefore, requiring the
Carlton County Defendants to advance the fees and expenses of lay and expert
witnesses would not be appropriate. This is not a case where the Carlton County
Defendants initiated a court proceeding against Mr. Greene or where comparable
circumstances exist that justify appointment of expert witnesses and advance payment
of their fees and costs. Nor is it at all clear that the expert testimony Mr. Greene
requests is “indispensable” to his case. See Means, 741 F.3d at 1059.
For these reasons, Mr. Greene’s Motion for Payment of Fees and Costs is
denied.

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III.

Order
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. The motion to amend (ECF No. 54) is GRANTED. Hollis Larson shall
be added to the caption of this case as a plaintiff. The Amended Complaint
shall continue to be treated as the operative pleading in this matter and shall
be construed as including the individual claims of both Mr. Green and
Mr. Larson.
2. Mr. Larson’s application to proceed in forma pauperis (ECF No. 55) is
GRANTED.
3. The Motion for Payment of Fees and Costs (ECF No. 60) is DENIED.
s/Katherine Menendez
Katherine Menendez
United States Magistrate Judge

Date: July 9, 2018

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