Harris v. Phelps County Jail

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to stay [ECF No. 25 ] is DENIED. IT IS FURTHER ORDERED that plaintiff's deadline for filing a third amended complaint, in accordance with the instructions set forth in t he Court's October 28, 2020 Order (ECF No. 24 ) and on a court-provided form, is now February 25, 2021. Plaintiff's failure to timely comply with this Order could result in the dismissal of this action, without prejudice and without further notice. (Amended/Supplemental Pleadings due by 2/25/2021.) Signed by Magistrate Judge Noelle C. Collins on 11/18/2020. (TMT)

Case: 4:20-cv-00800-NCC Doc. #: 26 Filed: 11/18/20 Page: 1 of 3 PageID #: 141

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTHONY M. HARRIS,
Plaintiff,
v.
PHELPS COUNTY JAIL, et al.,
Defendants.

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No. 4:20-CV-800 NCC

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Anthony M. Harris’s “Motion Pro Se for
Order of Stay of Execution.”1 ECF No. 25. In his motion, plaintiff requests a stay of this 42
U.S.C. § 1983 action so that “he can retain adequate and effective representation to be able to
clearly readdress everyone that has violated his federal and state laws of the Constitution of
America.” Id. at 1.
On June 1, 2020, self-represented plaintiff Anthony M. Harris, confined at the Phelps
County Jail, initiated this suit by filing a 42 U.S.C. § 1983 form complaint in the United States
District Court for the Western District of Missouri. ECF No. 1. On June 18, 2020, the matter
was transferred to this Court. See ECF Nos. 4-5. Because plaintiff had only written “on kiosk”
in the ‘Statement of claim’ section of his complaint, the Court directed plaintiff to file an
amended complaint on a court-provided form. ECF No. 6. On September 9, 2020, the Court
reviewed plaintiff’s Amended Complaint and multiple other filings with the Court. ECF No. 18.
The Court found that plaintiff’s filings contained numerous allegations of wrongdoing that had
nothing to do with the named defendants in this matter, and that plaintiff alleged multiple

Although plaintiff’s motion is titled as a “stay of execution,” the Court notes that this is a civil matter and there is no
scheduled execution at issue here.
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instances of unconstitutional conduct outside the judicial district of this Court. Id. at 8. The
Court could not decipher with certainty what claims plaintiff intended to bring. Id. As such, the
Court directed plaintiff to file a second amended complaint to clarify his claims and the named
defendants in the matter. Id. at 11. The Court also denied plaintiff’s motion for appointment of
counsel, finding that such appointment was not warranted at the time. Id. at 14.
On October 28, 2020, the Court reviewed plaintiff’s Second Amended Complaint and
found that plaintiff had followed the Court’s directive by clarifying his claims and including only
claims aimed at the named defendants. ECF No. 24 at 1. In his Second Amended Complaint,
plaintiff asserted claims of excessive force and deliberately indifferent medical care against two
Phelps County Jail employees, defendants Sergeant Lorts and Nurse Kelley. ECF No. 20.
However, plaintiff’s Second Amended Complaint requested the relief of release from
confinement, which is not cognizable in a 42 U.S.C. § 1983 action. Id. at 2-3. As such, the
Court directed plaintiff to file another amended pleading, clarifying the relief sought in this
matter. Id. at 3. Plaintiff’s Third Amended Complaint is currently due to the Court by
November 27, 2020.
Plaintiff now seeks a “stop, freeze, [or] put on hold” of this case until he can find an
attorney to represent him in this matter. ECF No. 25 at 4. The Court does not find that plaintiff
has put forth sufficient reasons to justify a stay of this case at this time. Plaintiff has had over
five months since case filing to seek counsel to assist him in this matter. Although plaintiff did
have a pending motion for appointment of counsel during part of that time, a pro se litigant has
no statutory or constitutional right to have counsel appointed in a civil case. Stevens v. Redwing,
146 F.3d 538, 546 (8th Cir. 1998). Furthermore, as stated on the Prisoner Civil Rights
Complaint form, plaintiff’s statement of the claim in his third amended complaint must contain

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“a short and plain statement of the facts” and does not need to include “legal arguments[] or cite
court cases or statutes.” Because plaintiff should be familiar with the facts supporting his
Section 1983 claims, plaintiff should be able to prepare his third amended complaint while
continuing his search for representation.
After Plaintiff files the third amended complaint and, before service of process and other
proceedings occur with respect to that complaint, the Court reviews the complaint pursuant to 28
U.S.C. § 1915(e)(2). Further proceedings in this case will occur after that review, only to the
extent any claim in the complaint remains pending. Until that point, holding this case in
abeyance, as Plaintiff requests, is not a reasonable use of the Court’s resources.
After careful consideration, the Court finds that judicial economy is best served by
granting plaintiff a ninety-day (90) extension for filing his third amended complaint. If plaintiff
is unable to retain counsel to represent him in this matter, he will need to draft and file the third
amended complaint himself in order to proceed in this matter.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to stay [ECF No. 25] is DENIED.
IT IS FURTHER ORDERED that plaintiff’s deadline for filing a third amended
complaint, in accordance with the instructions set forth in the Court’s October 28, 2020 Order
(ECF No. 24) and on a court-provided form, is now February 25, 2021.
Plaintiff’s failure to timely comply with this Order could result in the dismissal of
this action, without prejudice and without further notice.
Dated this 18th day of November, 2020.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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