Adams v. Penske Logistics et al

Filing 28

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's motions for appointment of counsel are DENIED without prejudice. [doc 4, 25] IT IS FURTHER ORDERED that Plaintiff is GRANTED up to and including October 31, 2012, by which to file his r esponse to the four motions to dismiss. Movants are GRANTED up to and including November 9, 2012, to file their replies, if any. ( Response to Court due by 10/31/2012.) Signed by Magistrate Judge Thomas C. Mummert, III on September 26, 2012. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DORAINE ADAMS, Sr.,
Plaintiff,
vs.
PENSKE LOGISTICS, et al.,
Defendants.

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Case No. 4:12cv1267 TCM

MEMORANDUM AND ORDER
Pending in this employment discrimination action are two motions filed by plaintiff,
Doraine Adams, Sr., for the appointment of counsel [Docs. 4, 25] and four motions to
dismiss filed by various combinations of defendants, Penske Logistics (Penske), Bill Batista,
Mike Lampen, and John Stucky [Docs. 15, 17, 19, 21].
Plaintiff, an African-American man over the age of 40, alleges in his pro se complaint
that he was discriminated against in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e through 2000e-17, and the Age Discrimination in Employment Act, 29
U.S.C. § 621-634, and in retaliation.1 All four defendants move to dismiss the complaint on
the grounds Plaintiff's cause of action was not disclosed in his April 2012 bankruptcy petition
[Doc. 15]; Batista, Lampen, and Stucky move to dismiss on the grounds that the cited statutes
do not provide for actions against individual supervisors or other individual defendants [Doc.
17]; Penske moves to dismiss on the grounds that Plaintiff fails to allege that he engaged in
any protected act [Doc. 19]; and Stucky moves to dismiss for improper service [Doc. 21].

1

Plaintiff does not specify in his complaint why he was retaliated against.

In his motions for appointment of counsel, Plaintiff, proceeding in forma pauperis,
states that he has endeavored to find an attorney to represent him in this matter but has not
been able to due to his poverty. The Court notes that a two-paged typed summary of events
and forty-four pages of exhibits are attached to the form complaint.
"'Indigent civil litigants do not have a constitutional or statutory right to appointed
counsel.'" Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (quoting Edginton v. Mo. Dep't
of Corrections, 52 F.3d 777, 780 (8th Cir. 1995)). In ruling on a motion for appointment of
counsel, the Court considers "whether both the plaintiff and the court will benefit from the
appointment of counsel, taking into account the factual and legal complexity of the case, the
presence or absence of conflicting testimony, and the plaintiff's ability to investigate the facts
and present his claim." Id.; accord Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th
Cir. 2006); Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).
At this stage of the litigation, the Court finds that the appointment of counsel would
be of no benefit. Now at issue are relatively straightforward questions of law to be answered
on the basis of the facts alleged by Plaintiff. His motions will be denied without prejudice.
The Court notes that the first motion for appointment of counsel was pending before
the motions to dismiss were filed and that the second was filed soon after the motions to
dismiss were filed. Because the Court is concerned that Plaintiff deferred filing a response
to any of the motions to dismiss until such time as his motions for appointment of counsel
were ruled, the Court will grant him additional time to file responses.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiff's motions for appointment of counsel are
DENIED without prejudice. [Docs. 4, 25]
IT IS FURTHER ORDERED that Plaintiff is GRANTED up to and including
October 31, 2012, by which to file his responses to the four motions to dismiss. Movants
are GRANTED up to and including November 9, 2012, to file their replies, if any.

/s/Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE

Dated this 26th day of September, 2012.

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