Emilio v. Nebraska Department of Correctional Services et al

Filing 69

MEMORANDUM AND ORDER - 1. Plaintiff's Motion to Stay Case Progression (Filing No. 68 ) is granted in part and only to the extent his requests for relief are consistent with the relief provided in this order. 2. Plaintiff's Motion to Appoint Counsel (Filing No. 66 ) is denied withoutprejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVON EMILIO,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, and
FRED BRITTEN, Warden,
Defendants.

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4:13CV3073

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Pavon Emilio’s Motion to Appoint
Counsel (Filing No. 66) and Motion to Stay Case Progression (Filing No. 68). The
court will deny the Motion to Appoint Counsel, and grant the Motion to Stay Case
Progression in part.
The court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94
F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that
“[i]ndigent civil litigants do not have a constitutional or statutory right to appointed
counsel. The trial court has broad discretion to decide whether both the plaintiff and
the court will benefit from the appointment of counsel[.]” Id. (internal citation and
quotation marks omitted). No such benefit is apparent here at this time. Thus, the
request for the appointment of counsel will be denied without prejudice to reassertion.
With respect to Plaintiff’s Motion to Stay Case Progression, Plaintiff asks for
an order staying progression of this case until after the court rules on Plaintiff’s
motion for an order compelling discovery. In addition, Plaintiff seeks leave to
supplement his Complaint. The court very recently granted Plaintiff’s discovery
motion on January 15, 2015, and ordered Defendant to respond to Plaintiff’s discovery
request by January 29, 2015. (See Filing No. 63.) On January 21, 2015, the court
extended the time in which Defendant had to respond to February 20, 2015. (See Text

Order dated January 21, 2015.) Because the standing progression order in this case
requires dispositive motions to be filed by February 27, 2015, the court will enter a
separate amended progression order.
Plaintiff’s Motion to Stay Case Progression also seeks leave to file an amended
complaint. Rule 15 of the Federal Rules of Civil Procedure provides “[t]he court
should freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a)(2). The applicable standard is summarized in Foman v. Davis,
371 U.S. 178, 182 (1962), which states:
If the underlying facts or circumstances relied upon by a plaintiff may be
a proper subject of relief, he ought to be afforded an opportunity to test
his claims on the merits. In the absence of any apparent reason—such
as undue delay, bad faith or dilatory motive on the part of the
movant, . . . undue prejudice to the opposing party by virtue of the
allowance of the amendment, futility of amendment, etc.—the leave
sought should, as the rules require, be “freely given.”
Id. In addition, Nebraska Civil Rule 15.1 provides that “[a] party who moves for
leave to amend a pleading (including a request to add parties) must file as an
attachment to the motion an unsigned copy of the proposed amended pleading that
clearly identifies the proposed amendments.” NECivR 15.1(a). In pro se cases, the
court may consider an amended pleading as supplemental to the original pleading.
NECivR 15.1(b).
Plaintiff did not file a copy of his proposed amended complaint. In addition,
his request for leave to amend does not provide the information necessary for the court
to consider whether to allow Plaintiff to amend his Complaint. Therefore, Plaintiff’s
request for leave to amend his complaint will be denied without prejudice to
reassertion of a motion that complies with the court’s local rules.

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IT IS ORDERED:
1.
Plaintiff’s Motion to Stay Case Progression (Filing No. 68) is granted in
part and only to the extent his requests for relief are consistent with the relief provided
in this order.
2.
Plaintiff’s Motion to Appoint Counsel (Filing No. 66) is denied without
prejudice to reassertion.
DATED this 22nd day of January, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
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