Lyles v. Broach et al

Filing 50

ORDER RULING ON REPORT AND RECOMMENDATION: The court GRANTS Defendants' Motion to Amend (ECF No. 38 ); adopts in part the Magistrate Judge's Report (ECF No. 31 ); and GRANTS summary judgment as to Defendant Herring . The court declines to adopt the part of the Report which recommends denying summary judgment on the merits as to Defendants Hamby, Miller, and Broach. Instead, the court DENIES without prejudice Defendants Hamby, Miller, and Broach's Summary J udgment motion (ECF No. 20 ). Defendants are to file their amended answer within ten days of the filing of this order. Further, this action is recommitted to the Magistrate Judge for further pretrial handling. Additionally, the court DENIES Plaintiffs motion to appoint counsel (ECF No. 45 ). Signed by Honorable Timothy M Cain on 07/31/2017. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Clifton Donell Lyles,

Plaintiff,
v.
Dental Assistant Angela Broach,
Nurse Herring, Lieutenant Lula
Miller; and Officer Hamby;
Defendants.

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C/A No. 4:16-3188-TMC-TER

ORDER

Plaintiff Clifton Donell Lyles, proceeding pro se, filed this action pursuant to 42 U.S.C. §
1983 on September 19, 2016. (ECF No. 1, Compl.). In accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling.
Defendants filed a motion for summary judgment on January 23, 2017. (ECF No. 20). Before the
court is the Magistrate Judge’s Report and Recommendation (“Report”), recommending that the
court grant the motion for summary judgment as to Defendant Herring and deny it as to Defendants
Hamby, Miller, and Broach. (ECF No. 31). Plaintiff was advised of his right to file objections (ECF
No. 31-1), but he did not file any objections and the time to do so has now run. Defendants timely
filed objections (ECF No. 37), and a motion to amend their answer to raise the defense of collateral
estoppel and/or issue preclusion (ECF No. 38). Plaintiff did not file any response to Defendants’
objections or motion to amend, but rather filed a motion for the appointment of counsel (ECF No.

45). Defendants filed a response opposing this motion (ECF No. 48).
The Report has no presumptive weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The
court need not conduct a de novo review when a party makes only “general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that case, the court
reviews the Report only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005).
In his Report, the Magistrate Judge recommends granting summary judgment as to
Defendant Herring. Plaintiff did file any objections to this recommendation. Finding no clear error,
the court adopts this part of the Report, and grants summary judgment to Defendant Herring.
In his Report, the Magistrate Judge also recommends denying summary judgment as to the
remaining Defendants Hamby, Miller, and Broach. These Defendants filed objections to this part
of the Report, and also filed a motion to amend their answer to raise the defense of collateral
estoppel/issue preclusion based on a state court action filed by Plaintiff in which judgment was
entered on May 17, 2017, Lyles v. South Carolina Department of Corrections, C/A No.
2016-CP-40-5671. (ECF No. 38-4). These Defendants asked the court to consider the preclusive
effect of the state court judgment and/or allow them to file a supplemental motion for summary
judgment.
First, the court must address Defendants’ motion to amend their answer. After the deadlines
set forth in a scheduling order have passed, the “good cause” standard of Federal Rule of Civil
Procedure 16 must be satisfied. Nourison Rug Corp. v. Parvizian, 535 F.3d 295 (4th Cir. 2008);
CBX Techs., Inc. v. GCC Techs., LLC, No. JKB-10-2112, 2012 WL 3038639, at *3 (D. Md. July 24,

2012) (“[O]nce the scheduling order's deadline for amendment of the pleadings has passed, a moving
party first must satisfy the good cause standard of Rule 16(b); if the moving party satisfies Rule
16(b), the movant then must pass the tests for amendment under [Rule] 15(a).”). The “good cause”
requirement of Rule 16(b) is unlike the more lenient standard of Rule 15(a) in that Rule 16(b) “does
not focus on the bad faith of the movant, or the prejudice to the opposing party,” but focuses on the
diligence of the party seeking amendment. Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986
F.Supp. 959, 980 (D.S.C. 1997); see also Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D. Md.
2002) (“[A] court’s scheduling order is not a frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.”). “Good cause” means that scheduling deadlines
cannot be met despite a party's diligent efforts. Dilmar Oil Co., 986 F. Supp. at 980 (citing 6A
Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990)); In re Lone
Star Indus., Inc. Concrete R.R. Cross Ties Litigation, 19 F.3d 1429, 1994 WL 118475, at *11 (4th
Cir. April 7, 1994) (unpublished) (finding good cause when facts were discovered after the
amendment deadline); see also Fed. R. Civ. P. 16(b) advisory committee's note to 1983 amendment.
“Carelessness is not compatible with a finding of diligence and offers no reason for a grant of
relief.” Dilmar Oil Co., 986 F. Supp. at 980.
Because it was only recently that a judgment was entered in the state court action,
Defendants were unable to amend their answer to assert a collateral estoppel/issue preclusion
defense by the December 22, 2016, which was the deadline set out in the Scheduling Order for the
amendment of pleadings. Based on the foregoing, the court finds good cause for Defendants not to
have timely moved to amend their answer. Moreover, as noted above, Plaintiff has not filed any
opposition to the motion to amend. Accordingly, the court grants Defendants’ motion to amend their
answer. Defendants are to file their amended answer within ten days of the filing of this order.

After Defendants file their amended answer, the court will allow them to file an amended motion
for summary judgment.
As to Plaintiff’s motion to appoint counsel, the court denies the motion at this time. There
is no constitutional right to have counsel appointed in a civil case. Whisenant v. Yaum, 739 F.2d 160,
163 (4th Cir.1984). The court has discretion to appoint counsel for an indigent in a civil action. 28
U.S.C. § 1915(d); Smith v. Blackledge, 451 F.2d 1201, 1203 (4th Cir.1971). However, the court may
appoint counsel in § 1983 cases only when exceptional circumstances exist. Cook v. Bounds, 518
F.2d 779, 780 (4th Cir.1975). The Fourth Circuit has stated that the existence of exceptional
circumstances “will turn on the quality of two basis factors - the type and complexity of the case,
and the abilities of the individuals bringing it.” Brock v. City of Richmond, 983 F.2d 1055 (4th
Cir.1993) (quoting Whisenant, 739 F.2d at 163).
After review, the court finds that, at this time, this is not the type of case which presents
factors that clearly reflect a need for the Plaintiff to have counsel appointed. The case itself does not
appear atypically complex and the Plaintiff has shown himself more than able to represent his
interests to this point in the lawsuit.
Accordingly, based on the foregoing, the court GRANTS Defendants’ Motion to Amend
(ECF No. 38); adopts in part the Magistrate Judge's Report (ECF No. 31); and GRANTS summary
judgment as to Defendant Herring. The court declines to adopt the part of the Report which
recommends denying summary judgment on the merits as to Defendants Hamby, Miller, and
Broach. Instead, the court DENIES without prejudice Defendants Hamby, Miller, and Broach’s
Summary Judgment motion (ECF No. 20). Defendants are to file their amended answer within ten
days of the filing of this order. Further, this action is recommitted to the Magistrate Judge for
further pretrial handling. Additionally, the court DENIES Plaintiff’s motion to appoint counsel

(ECF No. 45).
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
July 31, 2017
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.