HOUSER v. BEARD et al
Filing
91
ORDER denying Plaintiff's appeal, denying Plaintiff's Motion for appointment of counsel, and remanding matter back to Magistrate Judge for further pretrial proceedings. Signed by Judge Donetta W. Ambrose on 9/5/12. (ask)
IN THE UNITED STATES DISTRIC1 COURT
SYLVANIA
FOR THE WESTERN DISTRICT OF PE
DARIEN HOUSER,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
JEFFREY BEARD, ET AL.,
Respondents.
Civil A tion No. 10-416
Districl! J.tdge Donetta W. Ambrose
~
MEMORANDUM ORD R
The above captioned case was initiated on March 29,
~O·
0, by the filing of a motion to
proceed in forma pauperis and was referred to a United Sta es Magistrate Judge for pretrial
proceedings in accordance with the Magistrate Judges Act, 281).s.C. § 636(b)(l), and the Local
Rules of Court for Magistrate Judges.
Presently pendi~g before the Court is an appeal Plaintif
filed regarding several orders of
the Magistrate Judge and a request for appointment of counse 1. This case was filed over two
years ago and the Court will not engage in any further dilat< ry tactics by Plaintiff that have
caused such delays in adjudicating this case. In this regard, 'hortly after this case was filed,
Plaintiff was ordered to provide proper instructions, U.S. Mal shal Form 285 for service upon
Defendants along with a completed notice and waiver of sun mons for each Defendant and a
copy of the complaint for each Defendant (ECF No.5). Whe Plaintiff failed to comply with
this Order, the Court issued an Order to Show Cause (ECF 1 o. 6). When Plaintiff failed to
respond to that Order, the Court dismissed this action for failt e to serve within the prescribed
120 days (ECF No.7).
1
On August 23, 2010, Plaintiff filed a Motion for Rec( n~;ideration claiming that he had
advised the Magistrate Judge through a "Letter in Application l"olice" that he could not afford to
make service copies for the then thirty-two defendants he filed against because he was litigating
another case in the Eastern District of Pennsylvania. In an abl ndance of caution, on December
8, 2010, the Court granted Plaintiffs motion for reconsideratio to the extent that it ordered the
case to be reopened.
However, to the extent that Plaintiff I sought to place this lawsuit in
abeyance, the motion was denied and the Court specifically not d that "[i]t was Plaintiffs choice
to initiate a lawsuit naming 32 Defendants, and the grant of p';:rmission to proceed in forma
pauperis notwithstanding, Plaintiff is responsible to bear the e p(!nses associated with it should
he wish to proceed. See Tabron v. Grace, 6 F.3d 147, 158· 160 ~3d Cir. 1993)." ECF No.9.
On December 9, 2010, the Court again ordered
Pla~ntiff
documents for all of his 32 named defendants (ECF No. 10).
to provide proper service
cbr December 20, Plaintiff filed a
Motion for Extension of Time claiming that his original c( mplaint was removed from his
property box and he had "no reason to look" for it prior to He Court's Order. On January 3,
2011, the Court granted Plaintiff an extension of time until
~a:'lUary 24, 2011
to provide his
service documents.
On January 25, 2011, the Court ordered Plaintiff to
waiver of summons (waivers) for each Defendant, on or before
rovide a completed notice and
~~bruary
152011, as the waivers
Plaintiff submitted were incorrect (ECF No. 13). On January 6, 2011, Plaintiff filed a motion
seeking leave to file an amended complaint and for reconsider; tion of the Court's December 8,
2010, Order in which Plaintiffs request to place this case in abl y:mce was denied. On February
4, 2011, the Court granted Plaintiff s motion to file an amend d complaint and ordered him to
file "a comprehensive amended complaint, containing all facl a1 allegations and legal claims
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with respect to all Defendants, on or before April 1, 2011." The Court further ordered that
Plaintiff provide service copies of the amended complaint, prop rly completed U. S. Marshal 285
forms for all newly-named or newly-identified Defendants an
Notice and Waiver of Service
forms for each Defendant, on or before April 1, 2011. ECF
:>. 17. On February 16, 2011,
Plaintiff filed another "Letter in Application Notice," which
h,~
contends is a Supplemental
Complaint, which is in direct contravention of the Court's dire Lve to file ONE comprehensive
amended complaint containing all of his claims. Again on Ma) 4, 2011, Plaintiff was ordered to
provide completed copies of service documents for Defend nts Durco, Kennedy, Vihlidal,
Nunez, Griskin, and Braun. Again on May 12,2011, Plaintiffn q'.tested an extension of time in a
Letter in Application Notice." On May 12,2011, the Court gl nted Plaintiff an extension until
June 1,2011.
On December 16, 2011, the Court issued a Report and R(!commendation to dismiss this
case due to Plaintiffs repeated failure to comply with this COUl ':i Orders. Plaintiff was notified
that he had until January 6, 2012 to file written objections. No
I
and on January 23, 2012, the Court entered an Order (ECF 1
~jections
0,
were filed by that date,
27) adopting the Report and
Recommendation (ECF. No. 26) dated December 16, 2011 cs the Opinion of the Court and
dismissing the case with prejudice for failure to prosecute. Su sequently, on January 30, 2012,
Plaintiff filed a motion for reconsideration and to file another amended complaint to which he
attached two letters in application notices (ECF No. 28). On
~
Hch 7, 2012, the Court vacated
its January 23, 2012 Order and remanded this matter to me for f nher pretrial proceedings.
On April 6, 2012, this Court ordered the United States rv arshal to effectuate service. Due
to confusion as to what document constituted the operative con plaint in this action, on May 30,
2012, the Magistrate Judge entered the following Order.
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ORDER that Plaintiff file an amended complaint in thi action no later than June
15, 2012. The amended complaint must include all d~ fendants and all causes of
action and must set forth clearly-identified causes 01 action that both identify
Plaintiffs legal theories and facts suggestive of the pre cdbed conduct alleged in
one stand-alone document without reference to any ot er document filed in this
matter. See Fed. R. Civ. P. 8. Plaintiff is strictly caut oned that the inclusion of
separate, unrelated claims from those set forth in hi prior complaint will be
considered a failure to comply with an order of Court, nd will result in dismissal
of the amended complaint.
On June 7, 2012, Plaintiff requested yet another exteI sion of time to file his amended
complaint. On June 7, 2012, this Court granted Plaintiff an ex ens ion until July 16, 2012 to file
bc~
his amended complaint, noting that no further extensions woulc
granted.
On July 31, 2012, Plaintiff filed yet another motion see] ing reconsideration of his motion
for an extension of time to file his amended complaint (ECF . o. 79) and yet another Letter in
Application" to the Court (ECF No. 80). With these Pleadingt·. ' Plaintiff included an Amended
Complaint dated July 15, 2012, along with a large packet
f what appeared to be original
documents pertaining to grievances he has filed.
Noting that over two years had passed since this case had been initiated, on August 6,
2012, the Magistrate Judge denied Plaintiff s motion for an ex',ension of time to file yet another
amended complaint and ordered that the July 15, 2012 Amended Complaint be docketed as the
operative complaint in this proceeding. Also on August 6, 20,12, the Magistrate Judge ordered
!
Plaintiff to provide proper instructions, U.S. Marshal Form 1285 for service upon all newly
identified Defendants along with a completed notice and
waiv,~r of summons and a copy of the
i
complaint for each newly identified Defendant in his Amended Complaint, to the Clerk of Court,
for the Western District of Pennsylvania, on or before August l' ,2012. On August 21,2012, the
Court issued an Order directing the United States Marshal t< make service of the Amended
Complaint (ECF No. 86). This Order further directed that P 8intiff must provide the United
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States Marshal a separate "Process Receipt and Return" fa
1
(USM-285) for each newly
identified Defendant containing the full name and complete add e:is.
On September 4, 2012, Plaintiff filed an appeal. In his a peal, Plaintiff first objects to the
Order denying him leave to file another amended complaint. P s noted by the Magistrate Judge,
Plaintiff has had over two years to file a proper complaint in thi: action. There simply is no basis
upon which to allow him more time to file yet another com bint. The Court cannot allow
dilatory plaintiffs to control its docket. Plaintiff has been cau ioned that he must comply with
court orders despite his incarceration.
Plaintiff further objects to the Court Orders
requirin~
Hm to provide proper service
documents for each of the newly identified Defendants. The P aintiff chose to file an Amended
Complaint against additional defendants and he alone is
re~pensible
for providing accurate
service documents for service against each and every defendar 1. Goodson v. Maggi, Civil No.
08-44,2009 WL 936528, 1 (W.D. Pa. April 3, 2009).
Plaintiff further complains that he will require furthe extensions of time due to his
medical condition of angioedema. As stated above, this case' as filed over two years ago and
the Court has an obligation to move its docket. All litigants m sl. comply with Court deadlines.
Plaintiff has shown a remarkable capacity to file a voluminous. mount of lengthy pleadings with
the Court, notwithstanding his angioedema. Thus, he has noli demonstrated any real need for
special treatment by this Court with respect to deadlines.
Finally, Plaintiff seeks counsel in his appeal. In the ca e of Tabron v. Grace, 6 F.3d 147
(3d Cir. 1993), the Court of Appeals for the Third Circuit ider ti:fied standards to be considered
by the district courts in exercising their discretion whether to 'appoint" counsel pursuant to 28
5
U.S.C. § 1915(d). The court recognized that there are sign:ficant practical restraints on the
district court's ability to "appoint" counsel:
the ever-growing number of prisoner civil rights acticns filed each year in the
federal courts; the lack of funding to pay appointed ceunsel; and the limited
supply of competent lawyers who are willing to undtrt;:.ke such representation
without compensation.
6 F.3d at 157. The court also recognized that there are many c ses in which district courts seek
to appoint counsel but there is simply none willing to accept apl omtment. The court stated:
[T]he frequent unwillingness of lawyers to accept app
not only a function of the time pressures lawyers face il
an increasingly competitive field, but also by circu
indignities that some lawyers have been subjected to by
verbal and written abuse, excessive demands and cor
suits. We trust the district judges will be sensitive to
discretionary decisions in this area.
htment in such cases is
trying to earn a living in
aring knowledge of the
eltain litigants, including
plaints, and malpractice
uch problems in making
Id. at 157, n.7.
The court further recognized that volunteer lawyer time is extremely valuable and district
courts should not request counsel indiscriminately:
[v]olunteer lawyer time is a precious commodity . . .. Because this resource is
available in only limited quantity, every assignment of a volunteer lawyer to an
undeserving client deprives society of a volunteer lawye c.vailable for a deserving
cause. We cannot afford that waste.
Id. at 157. Finally, the court emphasized that "appointment" cf counsel remains a matter of
discretion and the decision must be made on a case-by-case basi
The Court of Appeals in Tabron identified standards to be considered by the district
courts in exercising their discretion whether to "appoint"
CI
unsel pursuant to 28 U.S.C. §
1915(d) (now subsection (e)). First, the Court must consider lht! merits of the plaintiffs claim.
It should not appoint counsel unless it appears that the claim has some merit in fact and law.
Tabron, 6 F.3d at 155. Other factors a court should considel include the plaintiffs ability to
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present his or her case; the plaintiffs education, literacy, prior work experience, prior litigation
experience, ability to understand English; restraints placed UI on him or her by confinement;
whether the claim is truly substantial; the difficulty or complex' t~1 of the legal issues; the degree
to which factual investigation will be required and the ability I f the indigent plaintiff to pursue
such investigation; the extent to which prisoners and others srffering confinement may face
problems in pursuing their claims; whether the claims are like y to require extensive discovery
and compliance with complex discovery rules; whether the ca e is likely to tum on credibility
determinations; whether the case will require testimony from i x)ert witnesses; and whether an
indigent plaintiff could retain counsel on his or her own behalf.
The Amended Complaint has only been recently filed a c it is not yet clear to the Court
whether it has any merit, either in fact or in law.
It nay present complex credibility
determinations but at the present stage it is too early to make that determination. As a pro se
litigant plaintiff will have the benefit of Haines v. Kerner, 404
S. 519 (1972) and its progeny,
which provides that courts must liberally construe pro se pIe dings.
Considering the severe
shortage of attorneys with experience and knowledge in this are of the law, who are also willing
to take these cases pro bono, it does not appear that this case
erits a request by this court for
counsel to represent him pursuant to 28 U.S.C. § 1915(e)
~r:
this point in the litigation.
Additionally, Plaintiff has made no showing that he has mac e any attempt to retain counsel
himself. Furthermore this Court notes that Local Civil Rule 10 C indicates that "[a]bsent special
circumstances, no motions for the appointment of counsel will
b~:
granted until after dispositive
motions have been resolved." Should the case survive any disp sitive motions and appear ready
to proceed to trial, the Court will reconsider this request. ACicordingly, Plaintiffs Motion for
Appointment of Counsel shall be denied.
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AND NOW, this
b~ of SeptemleL. 2012;
IT IS HEREBY ORDERED that Plaintiffs Appeal (1 CF No. 90) is DENIED as none
of the Magistrate Orders are clearly erroneous or contrary to law.
IT IS FURTHER ORDERED that Plaintiffs MotiOi j)r Appointment of Counsel is
DENIED.
IT IS FURTHER ORDERED that this matter is rema, ded back to the magistrate judge
for all further pretrial proceedings.
By the Court:
~.i.~$.'~
.
Donetta W. Ambrose
United Stat s District Judge
Darien Houser
GL-7S09
SCI-Greene
175 Progress Drive
Waynesburg, PA 15370
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