Swift v. Cohart et al

Filing 33

ORDER - Swift is ordered not to file any amended pleadings, or supplements to his pleadings, without first getting leave of the Court pursuant to Fed. R. Civ. P. 15(a)(1)(A) and NECivR 15.1. Swift's motion for summary judgment (filing 16 ) is denied without prejudice. Swift is ordered not to file another motion for summary judgment until after the defendant files an answer and the Court enters a case progression order. Swift's request for class certification is denied. Swif t's request for appointment of counsel is denied. Swift's request for discovery is denied as premature. Swift is ordered not to file any discovery motions until after the defendant files an answer and the Court enters a case progressi on order. Swift's motion for leave to proceed in forma pauperis (filing 31 ) is denied. Swift is ordered to comply with the Federal Rules of Civil Procedure and the local rules of this Court. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT,
Plaintiff,

8:14-CV-243

vs.
ORDER
RICHARD KYLER,
Defendant.
This case is before the Court on several matters, most pertinently a
filing (filing 32) that the Court has docketed as a supplement to Swift's
complaint,1 and a motion to proceed in forma pauperis. This case has gotten
out of hand, and the Court intends to get it back under control.
AMENDED PLEADINGS AND ANSWER DEADLINE
Swift has, at this point, filed a complaint (filing 1) and, with the leave
of the Court, a supplement to that complaint (filing 7). But Swift has also,
without the leave of the Court, filed a document captioned "Amended
Complaint" (filing 23) outside the time permitted by Fed. R. Civ. P.
15(a)(1)(A), a "Reply to Answer to Amended Complaint" (filing 30), and
today's supplement (filing 32), again without leave to do so.
Pursuant to Rule 15(a)(3), defendant Kyler now has until April 6, 2015
to file an answer to Swift's amended and supplemented complaint (consisting
of filings 1, 7, 23, 30, and 32). Swift is ordered not to file any more amended
pleadings, or supplements to his pleadings, without first getting leave of the
Court as required by the Federal Rules of Civil Procedure, Rule 15(a)(1)(A),
and the local rules of this Court, NECivR 15.1. Any amended or
supplemented pleadings that are filed by Swift without leave of the Court
may be stricken without further notice.

It was not clear to the Court whether Swift intended to supplement his complaint in this
case or initiate a new case. The Court has elected to file it as a supplement to the
complaint, for three reasons: (1) the motion to proceed in forma pauperis that was also
received contained this case number in the caption, (2) the allegations of Filing 32 are
clearly related to those in the pleadings in this case, and (3) the defendant identified in
Filing 32 has already been served with process in this case.
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MOTION FOR SUMMARY JUDGMENT
Swift also filed a motion for summary judgment (filing 16), but since
then has filed an amended complaint and supplement to his complaint. As a
result, Swift's motion for summary judgment is now inconsistent with his
complaint, and the defendant must be permitted to answer the current
complaint before summary judgment can be proper. Therefore, Swift's motion
for summary judgment (filing 16) will be denied without prejudice. Swift may
move for summary judgment later, after discovery and case progression. Swift
is ordered not to file another motion for summary judgment until after the
defendant files an answer and the Magistrate Judge enters a case
progression order.
REQUEST FOR CLASS CERTIFICATION
Swift's "amended complaint" contains several requests, the first of
which is a request to certify a class action. Filing 23 at 2. A class action may
be maintained only if
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a).
The "class" Swift purports to represent are those "persistently
subjected" to what Swift claims is a "policy" of the City of Omaha's
"mistrained" and "uneducated" police. But the Court already found that Swift
has not alleged enough facts to show a plausible official policy or custom
claim against the City of Omaha. Filing 6 (citing Jane Doe A By and Through
Jane Doe B v. Special School Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th
Cir. 1990)). The class of plaintiffs does not relate to Swift's claim against the
defendant, Kyler. There is no reason to believe that the defendant Kyler is
responsible for setting policy for the City of Omaha.
Furthermore, the Court finds nothing to suggest that there are
questions of law or fact common to the class, that Swift's claims are typical of
the class, or that Swift will fairly and adequately protect the interests of the
class. Swift's request to certify a class will be denied.
To make sure Swift understands this: the only defendant in this case is
Richard Kyler, who Swift alleges violated his constitutional rights. That is
the only claim for relief that Swift has sufficiently alleged. See filing 6. The
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only claim in this case is Kyler's alleged violation of Swift's constitutional
rights, not whether anybody else did anything to Swift, or whether anyone
besides Swift has been discriminated against. The City of Omaha is not a
defendant, nor are any other city officials defendants.
REQUEST FOR APPOINTMENT OF COUNSEL
Swift's amended complaint contains a request for counsel to be
appointed to represent the class. Filing 23 at 2. Indigent civil litigants do not
have a constitutional or statutory right to appointed counsel, and the Court
has broad discretion to decide whether both the litigant and the Court will
benefit from the appointment of counsel. Davis v. Scott, 94 F.3d 444, 447 (8th
Cir. 1996). Swift's request here is moot: he asked for counsel to be appointed
to represent the class, but the Court is not certifying a class. And the Court
declines to appoint counsel to represent Swift. His request for appointment of
counsel will be denied.
REQUEST FOR DISCOVERY
Swift's amended complaint also requests discovery. Filing 23 at 2-3.
That request will be denied. As explained above, because Swift keeps
amending and supplementing his complaint, Kyler has the right to respond to
Swift's amended pleadings. See Rule 15(a)(3). Under this Court's rules, the
Court will issue a progression order, addressing discovery and other issues,
approximately 30 days after the defendant's answer is filed. NECivR
16.1(c)(2). No discovery may take place until that order is entered, except
upon motion and order.
So, the Court will deny Swift's request for discovery at this time. The
Court's progression order, which will be entered after Kyler's answer is filed,
will address how and when discovery will be allowed. Swift is ordered not to
move for discovery before that time.
MOTION TO PROCEED IN FORMA PAUPERIS
Swift also filed a motion for leave to proceed in forma pauperis. Filing
31. Swift has already been given leave to proceed in forma pauperis in this
case, and nothing requiring a filing fee is pending. So, Swift's motion will be
denied as moot.
CONCLUSION
It seems as if every day brings a new filing from Swift, usually with
little regard for this Court's local rules or the Federal Rules of Civil
Procedure. Pro se litigants are held to a lesser pleading standard than other
parties. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir.
2014). But that principle has limits, and pro se litigants must still comply
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with court rules and directives. Soliman v. Johanns, 412 F.3d 920, 922 (8th
Cir. 2005). Failing to do so may have consequences.
Swift is cautioned that future filings that do not comply with court
rules, or that are filed too early or too late, may be disregarded or stricken.
Filings that the Court finds are presented for an improper purpose, such as
harassment, may lead to sanctions including financial penalties. See Fed. R.
Civ. P. 11(c). And failure to comply with the Court's rules or the Court's
orders may warrant dismissal of the action. See Fed. R. Civ. P. 41(b).
The Court does not demand perfection of Swift. Even experienced
counsel will sometimes run afoul of the rules, as the defendant's counsel in
this case would no doubt admit. But Swift does not seem to want to let this
case progress as the Rules of Civil Procedure provide. And the case cannot
progress while Swift is doing things like repeatedly amending his pleadings
or petitioning the Eighth Circuit. His constant filings are not speeding the
case up—they are slowing it down. It is the Court's responsibility to progress
this case toward a resolution on the merits, and Swift is advised to cooperate
with that process.
IT IS ORDERED:
1.

Swift is ordered not to file any amended pleadings, or
supplements to his pleadings, without first getting leave of
the Court pursuant to Fed. R. Civ. P. 15(a)(1)(A) and
NECivR 15.1.

2.

Swift's motion for summary judgment (filing 16) is denied
without prejudice.

3.

Swift is ordered not to file another motion for summary
judgment until after the defendant files an answer and the
Court enters a case progression order.

4.

Swift's request for class certification is denied.

5.

Swift's request for appointment of counsel is denied.

6.

Swift's request for discovery is denied as premature.

7.

Swift is ordered not to file any discovery motions until after
the defendant files an answer and the Court enters a case
progression order.

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8.

Swift's motion for leave to proceed in forma pauperis (filing
31) is denied.

9.

Swift is ordered to comply with the Federal Rules of Civil
Procedure and the local rules of this Court.

Dated this 23rd day of March, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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