Phillips v. Gordon et al

Filing 21

MEMORANDUM AND ORDER re: 13 MOTION to Appoint Counsel filed by Plaintiff Curtis Phillips, 12 MOTION for Leave to File Amended Complaint filed by Plaintiff Curtis Phillips: IT IS HEREBY ORDERED that plaintiffs motion for leave to file an amended complaint is DENIED. [ECF No. 12] IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel is DENIED without prejudice. [ECF No. 13]. Signed by District Judge John A. Ross on 11/20/20. (CMH)

Case: 1:20-cv-00057-JAR Doc. #: 21 Filed: 11/20/20 Page: 1 of 3 PageID #: 89

UNITED STATES DISTRICT COURT
EASTEE.N DISTRICT OF MISSOURI
SOQTHEASTERN DIVISION
1

)
)
)
)
)
)
)
)
)

CURTIS PHILLIPS,
Plaintiff,

v.
LANE GORDON, et al.,
Defendants.

No. 1:20-CV-00057-JAR

MEMORANDUM AND ORDER
This matter is before the Court on self-represented plaintiff Curtis Phillips' (1) motion for
leave to file an amended complaint, ~d (2) second motion to appoint counsel. For the following
reasons, the Court will deny plaintiffs motions.

(1)

Motion for Leave to File Amended Complaint

Plaintiff filed his motion for 'leave to file an amended complaint before defendants filed
their answer. Procedurally, plaintiff did not need to seek leave of Court file an amended complaint.
Pursuant to Federal Rule of Civil Procedure 15(a)(l)(B), plaintiff may file an amended complaint
once as a matter of course (i.e., without leave of Court) within 21 days after service of defendant's
responsive pleading. Defendants fi~ed their responsive pleading on November 16, 2020, and
therefore plaintiff has the right to file an amended complaint as a matter of course, and without
leave, until the expiration of the 21-day time period of Rule 15(a)(l)(B).
Because plaintiff sought leave to file an amended complaint without attaching the proposed
amended complaint, the Court will deny plaintiffs motion. See Popoalii v. Correctional Med.

Servs., 512 F.3d 488,497 (8th Cir. 2008) (finding that it is appropriate to deny leave to amend a
complaint when a proposed amended complaint was not submitted with the motion). If plaintiff

Case: 1:20-cv-00057-JAR Doc. #: 21 Filed: 11/20/20 Page: 2 of 3 PageID #: 90

I

seeks to file an amended complaint tithin the time allowed by Rule 15(a)(l)(B), he,shall file an
amended complaint on the court-provided form. Plaintiff is warned that the filing of an amended
complaint completely replaces the original complaint. This means that claims that are not realleged in the amended complaint will be deemed abandoned. See In re Wireless Tel. Fed Cost
Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005) ("It is well-established that an amended

complaint supercedes an original complaint and renders the original complaint without legal
effect").
(2)

Second Motion to Appoint Counsel

Plaintiff has filed a second motion for appointment of counsel. The appointment of counsel
for an indigent plaintiff in a civil matter lies within the discretion of the Court. Phillips v. Jasper
Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). The standard for appointment of counsel in a civil

case is whether both the plaintiff and the Court would benefit from the assistance of counsel.
Edgington v. Mo. Dep't of Corr., 52,F.3d 777, 780 (8th Cir. 1995). This determination involves

the consideration of several relevant criteria, including "the factual complexity of the issues, the
ability of the indigent person to investigate the facts, the existence of conflicting testimony, the
ability of the indigent person to present the claims, and the complexity of the legal arguments."
Phillips, 437 F.3d at 794 (citing Edgington, 52 F.3d at 780).

Again, the Court finds that appointment of counsel is not warranted at this time. This
action involves straightforward questions of fact rather than complex questions of law, and
plaintiff has clearly presented his cl~ims. He has filed several motions, all of which are readily
understood. This proceeding is in its initial stages, and the Court concludes that appointment of
counsel would not be of sufficient benefit to the Court or to plaintiff at this time. The Court will
deny plaintiffs motion without prejudice.

-2-

Case: 1:20-cv-00057-JAR Doc. #: 21 Filed: 11/20/20 Page: 3 of 3 PageID #: 91

Accordingly,
IT IS HEREBY ORDERED.that plaintiffs motion for leave to file an amended complaint

is DENIED. [ECF No. 12]
IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel is DENIED
without prejudice. [ECF No. 13]

Dated this 20th day of November, 2020.

~.ROSS
ED STATES DISTRICT JUDGE

-3-