East v. Minnehaha County, South Dakota et al
Opinion and ORDER denying 26 Motion to Appoint Counsel ; denying 29 Motion to Appoint Counsel ; denying 29 Motion to Extend ; denying 29 Motion for Leave to File Excess Pages. East shall give notice whether he will file a fourth amended complaint or whether he wishes the Court to screen his proposed third amended complaint. Signed by U.S. District Judge Roberto A. Lange on 7/27/17. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
OPINION AND ORDER
DR. HEISLER, LINDA OSBORNE,
JESSICA HOFFMAN, MICHAEL JOE
Plaintiff Donald East ("East"), an inmate at the Mike Durfee State Prison
in Springfield, South Dakota, filed this lawsuit pursuant to 42 U.S.C. § 1983.
Doc. 1. East amended his complaint. Doc. 10, and this Court screened his
amended complaint pursuant to 28 U.S.C. § 1915A, Doc. 11, dismissing it in
part but allowing East's Eighth Amendment claim to proceed. East again
amended his complaint. Doc. 17, and this Court again screened his complaint
and dismissed it in part. Doc. 20. East recently filed a third amended
complaint, which is pending. Doc. 25.
In East's most recent motion, he moves this Court to appoint him
counsel, extend time in which to serve defendants, and grant permission to file
excess pages. Doc. 29. In his motion. East states that he plans to file a fourth
amended complaint. Id. at 2. Because East's motion to amend his second
amended complaint is still pending, East must give the Court notice whether
he will file a fourth amended complaint or whether he wishes the Court to
screen his proposed third amended complaint.
Further, if East wishes to amend his complaint, he must follow the local
rules of procedure which state "any party moving to amend a pleading will
attach a copy of the proposed amended pleading to its motion to amend with
the proposed changes highlighted or underlined so that they may be easily
identified." D.S.D. Civ. LR 15.1. East must also file a motion to amend, as he
did with his proposed third amended complaint.
East has twice moved this Court to appoint him counsel. Doc. 3,
Doc. 16, and this Court has denied both motions. Doc. 11, Doc. 20. In his
current motion. East again moves for appointment of counsel, and his motion
is denied because nothing has changed in his case. East continually amends
his complaint, but it does not seem that this is done out of a lack of
understanding of the legal rules and process but because he is dissatisfied
with this Court's conclusions. Still, this Court has liberally construed all of
East's complaints and motions and will continue to do so because he proceeds
East also worries that the ninety day limit in which to serve his
complaint will run out. "Under Federal Rule of Civil Procedure 4(m), if a
plaintiff shows good cause for untimely service, then the court must extend
the period for service." Wright v. First Student, Inc., 710 F.3d 782, 783 (8th Cir.
2013). If the delay is merely a result of this Court's pre-service screening of
East's complaint, East will likely be able to show "good cause."
Finally, East's motion concerns complaints that defendants are not
giving him evidence for his lawsuit.^ At this point however. East is not
required to present evidence. "Federal pleading rules call for 'a short and plain
statement of the claim showing that the pleader is entitled to relief[.]'"
Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346 (2014)(quoting Fed. R.
Civ. P. 8(a)(2). This statement is all East is required to provide at this point. In
this Court's previous screening orders. East's claims were mostly dismissed
for purely legal reasons, and none were dismissed because of a lack of
Accordingly, it is ORDERED
1. East shall give the Court notice whether he will file a fourth amended
complaint or whether he wishes the Court to screen his proposed
third amended complaint. He must give notice by August 3, 2017. If
he fails to do so, or fails to follow the local rule quoted above, this
Court will screen his proposed third amended complaint under 28
U.S.C. § 1915A.
2. East's motion for appointment of counsel (Doc. 26) is denied.
1 If East wishes to raise claims concerning the issues highlighted in his motion,
he must do so in an amended complaint or in a separate lawsuit.
3. East's motion to appoint counsel, motion for extension, and motion to
file excess pages (Doc. 29) is denied.
Dated July ^7. 2017.
BY THE COURT:
ROBERTO A. LANOE
UNITED STATES DISTRICT JUDGE
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