Anderson v. Herbert et al

Filing 68

MEMORANDUM DECISION and ORDERgranting in part and denying in part 54 Motion for Extension of Time to File Response/Reply; granting in part and denying in part 61 Motion for Extension of Time to File Response/Reply; denying without prejudice 24 Motion to Appoint Counsel; denying 32 Motion for Discovery. Signed by Magistrate Judge Brooke C. Wells on 01/30/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MICHAEL T. ANDERSON,
Plaintiff,
v.
GARY R. HERBERT, et al.,
Defendants.

MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
APPOINT COUNSEL, DENYING
MOTION FOR EXPEDITED DISCOVERY
and GRANTING AND DENYING IN
PART PLAINTIFF’S MOTIONS FOR
EXTENSION OF TIME

Case No. 2:13-cv-211-RJS-BCW
District Judge Robert J. Shelby
Magistrate Judge Brooke Wells
District Judge Robert J. Shelby has referred this case to Magistrate Judge Brooke C.
Wells pursuant to 28 U.S.C. § 636(b)(1)(B).1 Before the Court are the following motions: (1)
Plaintiff’s Motion to Appoint Counsel2; Plaintiff’s Motion for Limited Expedited Discovery3;
and two Motions for Extension of Time filed by Plaintiff.4 The Court has carefully considered
all pleadings, memoranda, and other materials submitted by the parties, as well as the law and
facts relevant to these motions. Pursuant to civil rule 7-1(f) of the United States District Court
for the District of Utah Rules of Practice, the Court elects to determine these motions on the
basis of the written memoranda and finds oral argument would not be helpful or necessary.5

1

Docket no. 42.
Docket no. 24.
3
Docket no. 32.
4
Docket nos 54 & 61.
5
See DUCivR 7-1(f).
2

For the reasons set forth more fully below, the Court DENIES Plaintiff’s Motion to
Appoint Counsel;6 DENIES Plaintiff’s Motion for Limited Expedited Discovery7 and GRANTS
AND DENIES IN PART Plaintiff’s Motions for Extensions of Time.8
BRIEF BACKGROUND
This case arises from Plaintiff’s housing situation. Plaintiff, a single homeless male who
is pro se and proceeding in forma pauperis,9 filed his Complaint against various state and local
officials and a local non-profit homeless service provider alleging discrimination in the
disbursement of federal housing funds for the homeless.10 To date, Plaintiff has been granted
leave to amend his Complaint twice as his legal theories for relief have evolved.11
Generally, Plaintiff asserts Defendants discriminated against him in their use and
disbursement of certain federal funds, specifically Emergency Solutions Grants (“ESG”) due to
his status as a non-married, non-mentally ill person. Plaintiff’s Second Amended Complaint
alleges that Defendants are discriminating against single individuals who are homeless and
instead giving homeless families and individuals with mental illness priority for federal housing
funds in violation of the Fair Housing Act. Plaintiff also alleges that Defendants’ act of
disbursing federal ESG funds to Defendant The Road Home violates the equal protection and
due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. Plaintiff
further alleges that the Supremacy Clause of the U.S. Constitution has been violated by
Defendant’s enforcement of Utah Code Ann. § 35A-8-602 and seeks an injunction precluding its
enforcement.

6

Docket no. 24.
Docket no. 32.
8
Docket nos. 54 & 61.
9
See docket no. 2.
10
Docket no. 3.
11
Docket nos. 20 & 30
7

2

ANALYSIS
A. Motion to Appoint Counsel
Plaintiff requests counsel be appointed for himself as well as for a proposed class action.
Plaintiff seeks the appointment of counsel pursuant to 28 U.S.C. § 1915 and 42 U.S.C. §
3613(b).
Generally, as a civil litigant, Plaintiff has no constitutional right to counsel.12 28 U.S.C. §
1915, which pertains to proceedings in forma pauperis (“IFP Statute”), provides “[t]he court may
request an attorney to represent any person unable to afford counsel.”13 However, the
appointment of counsel under this statute is within the discretion of the court.14 “The burden is
upon the applicant requesting counsel to convince the court that there is sufficient merit to his [or
her] claim to warrant the appointment of counsel.”15 When deciding whether to appoint counsel,
a court should consider a variety of factors, “including ‘the merits of the litigant’s claims, the
nature of the factual issues raised in the claims, the litigant’s ability to present his [or her] claims,
and the complexity of the legal issues raised by those claims.’”16
Here, the Court finds that Plaintiff has not met his burden for the appointment of counsel
under the IFP Statute. First, as to the merits of litigant’s claims, Plaintiff is correct that “…just
because you file a motion to dismiss, doesn’t mean your motion is going to be granted.”17
Therefore, at this stage in the litigation, prior to the Motions to Dismiss being fully briefed or
decided, the Court finds that Plaintiff’s claims are at least plausible and rise above the
12

See Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)(citing Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir.
1969)).
13
28 U.S.C. § 1915(e)(1).
14
See McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
15
Id. (citing U.S. v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973).
16
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)(quoting Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991).
17
Docket no. 53 at 3.

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speculative level.18 However, once the Motions to Dismiss are fully briefed this may change.
As to the nature of the factual issues contained in Plaintiff’s Complaint, the Court agrees with
Defendants that these issues are not overly complex. Next, the Court does not find Plaintiff to
be incapacitated or unable to pursue this matter at this stage of the litigation. To the contrary, the
Court finds Plaintiff to be well prepared and very articulate. In fact, upon review of Plaintiff’s
pleadings, the Court is quite impressed with the Plaintiff’s ability to craft arguments and cite and
apply legal authority appropriately. Therefore, on balance, the Court finds Plaintiff has not
persuaded to Court to appoint counsel under the IFP Statute.
In addition to seeking the appointment of counsel under the IFP Statute, Plaintiff seeks
the appointment of counsel pursuant to 42 U.S.C. § 3613(b)(1) which provides: “[u]pon
application by a person alleging a discriminatory housing practice or a person against whom such
a practice is alleged, the court may—(1) appoint an attorney for such person…”19 In determining
whether to appoint an attorney under this statute, at least one district court in the 10th Circuit has
indicted
[a]lthough little case law exists on the appointment of an attorney by the court
under 42 U.S.C. § 3613(b), the similar nature of the underlying legal actions and
the similar statutory language permitting the appointment of an attorney, the
Court finds case law on the appointment of an attorney under 42 U.S.C. § 2000e-5
to be instructive on applying the provisions of 42 U.S.C. § 3613(b).20
In the 10th Circuit, four factors must be considered by courts in making the
decision whether to grant a Plaintiff’s request for appointed counsel under 42 U.S.C. §
2000e-5: “(1) the plaintiff’s financial ability to afford counsel; (2) his diligence in

18

See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007)(internal citations omitted).
42 U.S.C. § 3613(b)(1).
20
ZHU v. Countrywide Realty Co., Inc., 148 F.Supp.2d 1154, 1157 (D. Kan. 2001).
19

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attempting to secure counsel; (3) the merits of his case; and (4) in close cases, the
plaintiff’s capacity to prepare and present the case without the aid of counsel.”21
Here, although the Plaintiff has not submitted a separate financial affidavit which
demonstrates his current financial status in relation to the Motion for Appointment of Counsel, it
is clear based upon the Plaintiff’s statements in a number of his pleadings that he is homeless and
due to his uncertain employment status, does not have the financial ability to afford counsel.
Second, Plaintiff has indicated that he has contacted various legal service providers for assistance
with copying of his legal papers. However, Plaintiff has not presented sufficient evidence as to
his efforts to secure counsel for his case. Next, as discussed above, Plaintiff, for the purposes of
appointing counsel has presented a colorable claim at this stage of the litigation. Finally, the
Court finds that Plaintiff is well equipped to present his case without the assistance of counsel.
Therefore, the Court denies Plaintiff’s Motion for Appointment of Counsel. However,
should the case survive the pending Motions to Dismiss, the Court reserves the right to appoint
counsel for Plaintiff if fundamental fairness so dictates.
B. Motion for Limited Expedited Discovery
Plaintiff seeks expedited discovery and argues that good cause exists to allow for such
discovery in order for Plaintiff to demonstrate to the Court that he is not the only individual
being discriminated against by Defendants’ actions. Therefore, according to Plaintiff, “[i]t is
imperative that counsel be appointed because the Plaintiff is not licensed counsel and therefore is
unable to represent these other victims, to bring about an end” to Defendants’ discriminatory and
illegal policies involving housing in the state of Utah.22

21
22

Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992).
Docket no. 32 at p. 7-8.

5

Generally, “a party may not seek discovery from any source before the parties have
conferred as required by Rule 26(f)”23 unless authorized by a court order or agreement of the
parties. “[A] party seeking expedited discovery in advance of a Rule 26(f) conference has the
burden of showing good cause for the requested departure from usual discovery procedures.”24
Good cause exists “where a party seeks a preliminary injunction…or where the moving party has
asserted claims of infringement and unfair competition.25 Additionally, good cause is found
“where physical evidence may be consumed or destroyed with the passing of time.”26
Here, Plaintiff states that he wishes to conduct “limited” expedited discovery “for
purposes of securing additional evidence that supports his Motion for Appointment of Counsel
and to be used in amending such motion.”27 Plaintiff argues that “good cause” exists because
unless he obtains additional discovery relating to Defendants’ policies, procedures and
communications, other individuals similarly situated to Plaintiff may not receive relief from this
Court. Further, Plaintiff contends that because he is pro se he cannot represent a class action.
The Court finds Plaintiff’s Motion to be problematic in a number of respects. First,
notwithstanding the Court’s denial of Plaintiff’s Motion for Appointment of Counsel, Plaintiff
has failed to demonstrate good cause exists to grant this motion and allow for early discovery in
the case. Upon review of the documents Plaintiff seeks, it is evident that none of the typical
situations that allow for expedited discovery are of concern in this case. Namely, Plaintiff is not
seeking a preliminary injunction, brings no claims for infringement or unfair competition and no
evidence has been presented that demonstrates evidence is at risk for being lost or destroyed.

23

F.R.C.P 26(d).
Qwest Communications Int’l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).
25
Id.
26
Id.
27
Docket no. 32.
24

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Moreover, the Court agrees with the Defendants that Plaintiff’s discovery requests are not
“limited” or “narrowly tailored” as required. Upon review, Plaintiff’s discovery requests are
arguably overbroad and quite burdensome for Defendants’ to produce on an expedited basis.
Further, it is not certain that such documentation would accomplish what Plaintiff is seeking to
accomplish through his Motion. Therefore, for these reasons, in addition to denying Plaintiff’s
Motion for Appointment of Counsel, the Court denies Plaintiff’s request for expedited discovery.
C. Motions for Extensions of Time
Finally, through two Motions for Extensions of Time, it is clear that Plaintiff is not only
seeking additional time to respond to the pending Motions to Dismiss, but Plaintiff also seeks
additional time to perform additional research so he can amend his Complaint again. As noted
above, the Court has twice allowed Plaintiff to amend his Complaint. In addition, through the
instant Motions for Extensions of Time, Plaintiff has not brought a separate Motion for Leave to
Amend as required by both the Federal and Local Rules of Civil Procedure28 nor has Plaintiff
attached a copy of his proposed Complaint to his Motions. Therefore, the Court finds that
Plaintiff’s “motion” to amend his Complaint is not properly before the Court at this time.
However, although the Court will not make any decision as to this issue, the Court cautions
Plaintiff that he will not be continually granted leave to amend his Complaint in order to
introduce new theories in order to avoid dismissal of his case.
As to Plaintiff’s request for additional time to respond to the Motions to Dismiss, all
Defendants except the Salt Lake County Defendants have clearly indicated that they are
unopposed to Plaintiff’s request.29 Also, based on the Plaintiff’s housing situation and pro se
status, the Court is sympathetic to his circumstances and will allow Plaintiff additional time to
28

See F.R.C.P. 15; DUCivR 7-1(b)(1).
The Salt Lake County Defendants did express that if allowed to amend his Complaint, Plaintiff should be given a
strict deadline by the Court.
29

7

respond to the Motions to Dismiss. Therefore, the Court orders that Plaintiff shall have thirty
days from the issuance of this Order in order to respond (but not to amend his Complaint) to the
pending Motions to Dismiss.
CONCLUSION & ORDER
For the forgoing reasons, IT IS HEREBY ORDERED that
1) Plaintiff’s Motion to Appoint Counsel30 is DENIED without prejudice. If this case
progresses beyond the pending Motions to Dismiss and it appears that counsel may be
needed to assist Plaintiff, the Court will again consider appointing an attorney to
appear pro bono on Plaintiff’s behalf. Accordingly, no further motions for appointed
counsel shall be accepted by the Court.
2) Plaintiff’s Motion for Limited Expedited Discovery31 is DENIED.
3) Plaintiff’s Motions for Extension of Time are GRANTED IN PART AND DENIED
IN PART. The Court finds that a Reply Memorandum for the Motion to Appoint
Counsel and Motion for Limited Expedited Discovery are unnecessary. However,
Plaintiff shall have thirty days from the issuance of this Order in which to respond to
the Defendants’ Motions to Dismiss. However, Plaintiff will not be allowed to
Amend his Complaint without bringing a formal Motion to Amend. Lastly, Plaintiff
is directed to follow both the local and federal rules of Civil Procedure for all future
motions brought before the Court.

30
31

Docket no. 24.
Docket no. 32.

8

IT IS SO ORDERED.
DATED this 30 January 2014.

Brooke C. Wells
United States Magistrate Judge

9