HOUSER v. BEARD et al, No. 2:2010cv00416 - Document 91 (W.D. Pa. 2012)
Court Description: 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)
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HOUSER v. BEARD et al Doc. 91 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, 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 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 Dockets.Justia.com On August 23, 2010, Plaintiff filed a Motion for Rec( 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 On December 9, 2010, the Court again ordered Cir. 1993)." ECF No.9. 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 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 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 2 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 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 were filed by that date, 0, 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. 3 ORDER that Plaintiff file an amended complaint in thi action no later than June 15, 2012. The amended complaint must include all 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 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 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 4 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 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 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 6 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' 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) 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 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. 7 AND NOW, this 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. Darien Houser GL-7S09 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 8 By the Court: . . Donetta W. Ambrose United Stat s District Judge
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