Berry v. Locke, No. 1:2008cv00697 - Document 28 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION re: Motion by pltf for an extension of time to file a supplemental response to court's show cause order and request for court appointed counsel.. Signed by District Judge James C. Cacheris on 4/9/09. Copy mailed to pltf.(nmck, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria RENEE R. BERRY, ) Plaintiff, Division > ) ) ) v l:08cv697 (JCC) ) GARY LOCKE, SECRETARY, U S DEPT. OF COMMERCE, ) ) ) Defendant. ) MEMORANDUM OPINION This matter comes before the Court on Plaintiff's Motion for an Extension of Time to file a supplemental response to the Court's Show Cause Order and her Request for Court- Appointed Counsel.1 For the reasons stated below, the Court will deny the motion to appoint counsel and grant the motion for an extension of time. I. Background This case is one of several employment discrimination cases that Plaintiff Renee Berry ("Berry") the Government. Last year, filed in 2008 against the Court dismissed her employment discrimination claim in Berry v. Gutierrez, 587 F. Supp. 2d 717 (E.D. Va. 2008). That case is currently on appeal before the 1 This case was originally captioned as "Berry v. Carlos M. GutlerreZ' Secretary, U.S. Department of Commerce." Mr. Gutierrez is no longer Secretary of the Department of Commerce. As of March 24, 2009, the new Commerce Secretary - and the proper nominal defendant here - is Gary Locke. of April 2, 2009; Fed. R. Civ. P. 25(d). See Notice Fourth Circuit (Case No. in the Federal Circuit, 2009 WL 89668 09-1084). Berry also prosecuted claims Berry v. Merit Systems Protection Board, (Fed. Cir. Jan. 15, 2009), and the U.S. Court of Federal Claims, Berry v. United States, Civil Action No. 08-330C. The complaint filed in this case (the "Complaint") alleges that the United States Patent and Trademark Office "USPTO") (the discriminated against Berry when it assigned her cases "outside her area of expertise while [Berry was] Signatory Program." She appears to be Compl. at SI 9. on the Partial challenging an adverse EEOC determination and asks the Court to order the Equal Opportunity Employment Commission (the "EEOC") to re-open the hearing process in one of the actions she filed with that agency. Compl. Berry, at 4. proceeding in forma pauperis, Complaint on July 7, 2008. submitted the After the Government filed a Notice of Related Case stating that the instant case is related to Berry's other 2008 filing, 717 (E.D. Va. March 6, 2008), Berry v. Gutierrez, 587 F. Supp. the case was transferred to this Court. the Court issued an order 2d On (the "Show Cause Order") requiring Berry to show cause why her case should not be dismissed for failure to serve the Government within 120 days of the filing of the Complaint. a default judgment. Berry then moved unsuccessfully for See Magis. Order of March 17, 2009. On March 20, Berry submitted a U.S. Berry had filed the motion (the earlier motion Marshal in response "Response"). for already a default served two motions the for court-appointed counsel were to show cause noticed for opposed the Extension order" Motion liberally Kerner, 404 Slip Copy, 2007 These motions pleaded by a pro for an beyond doubt entitling him to *1 (4th Cir. court to a is scant assertions 520 drafted by (1972); offer relief." (citing not in 1 10. and the are before and a response The motions Motion for the Court. an are attorney. 2007). allegations can prove Thompson Cruz v. v. are to develop complaint, if no a pro See Haines v. LSAA, 405 unless of 319 tangential se Inc., it to call is facts 1999 WL U.S. v. inartfully sufficient set Echols, Beto, construed "However supporting evidence expected a a The Government see also Khozam (W.D.N.C. the plaintiff 1999) While those se plaintiff, that April on April 23, for Counsel") supplement the Standard of Review 2932817 opportunity March the Court: filed by pro se plaintiffs 519, WL On for Extension"). Friday, like claimed that now before file a 2. than U.S. "to Counsel Complaints to enter a default The Response, ("Motion for on April Show Cause Order, Government. ("Motion a hearing on II. more the judgment, that are motion for an extension of time [sic] to filing that asked the Court judgment in her favor Berry's 2009, 717280 (1972)). claims complaint at from contains potentially cognizable particularize these Hampton, F.2d 775 603, claims, claims. F.2d 1274 604 (4th Id. (4th Cir. Cir. The Court in notes, EEOC Case Carlos v. treats the below, the Court will briefs to the same by Gutierrez). (citing Beaudett 1985); Coleman v. v. City of Peyton, 340 1965)). however, graduated from law school. (deposition a plaintiff should be allowed to See Gov't Resp., No. claims Ex. 570-2008-00493X, While instant motions that Berry the is 2 to have at 12 Renee R. standard under irrelevant to the which Berry v. the rulings Court explained henceforth hold Berry's pleadings and standard that it would if she were represented counsel. III. A. Motion for Appointed Counsel The Court will appoint counsel to a civil party only in exceptional circumstances. Cir. 1975). counsel Butkovich, Cook v. it is claim but lacks 584 F. Supp. obvious the 909, of exceptional circumstances factors of the - Bounds, 518 F.2d 779 (4th One circumstance in which courts should appoint occurs when colorable Analysis the that capacity to present 947 (M.D.N.C. turns bringing it." it. 1984). a Waller v. The existence "on the quality of two basic type and complexity of individuals a pro se litigant has the case, Whisenant v. and the Yuam, abilities 739 F.2d 160, v. 163 U.S. (4th Cir. Dist. 1984), Court for abrogated on the S. Dist. other grounds by Mallard of Iowa, 490 U.S. 296 (1989). Berry Court to appoint and lacks the substantive USPTO this Va. case because requisite a previous litigated in 2008). skill in she "is Federal not that a Civil Berry v. Berry's Gutierrez, 587 F. First, and most importantly, testimony in which Berry graduated law school and passed the bar exam. Case No. Gutierrez). Of Additionally, DOJ as Berry 2 the at 12 1. against for 2d 717, 723 counsel in the Government that she has she has not (deposition in Berry v. testified an EEO complaint in court, the bottom of Ex. at for appointed states although Renee R. that Carlos she v. has been investigator. See id. litigants who are potentially representation because pursue their claims at Gov't Resp., the many pro se civil deserving of fall "a lawyer," 570-2008-00493X, employed by the 5-7. is case Supp. The Court will deny her request as well. the and the PL's Mot. request submitted deposition EEOC Procedure employment discrimination this Court, she wants licensed attorney respond fully to the order." counsel was denied. (E.D. in her one-page motion counsel law to In the states they those with list. are not formal competent legal to training at Moreover, present this her it claims. Court, is She in various clear that Berry has has administrative appellate courts. training, and demonstrated federal court prosecuted Plaintiff's clearly show them with fora, educational ability that to the tenacity and in the circumstances exist. "exceptional circumstances" warranted the appointment this pro plaintiff would have court-appointed for appointed B. se plaintiff's a colorable attorney. for additional information PL's Mot. at 1. Under Procedure that in she the Local 6(d), the Government's pursuant to the a rebuttal 2009. brief opposing party's Rules also "is response to 31, the The Court will reply March claim to of an every pro se services deny if Berry's of a request Extension of Time Berry states to almost Indeed, counsel. Motion Rule of Civil case, in capacity to present No exceptional in legal and defend claims her claims. attorney in several background, assert she has capacity to within that to file Show Cause Order." of this Court and Federal Berry has had ample time requests which was mailed to her 7(f) (3) reply brief."); counsel Rules time memorandum supporting dismissal Rule three to the however, Show Cause Order, See Local in need of more ("the moving party may days Fed. for on after R. Civ. service P. extensions of the 6 (d). of file time The Local relating to motions "must be in writing and, upon with disfavor." Here, in general, will be looked Local Rule 7(1). Berry requested an extension of time to further show cause why her case should not be dismissed before her time to file a reply brief had run. case, In the circumstances of this the Court finds it appropriate to grant a short extension of time for Berry to file a reply memorandum in furtherance of her argument against dismissal. Should Berry raise new legal arguments or present new facts in her filing, however, the Court will entertain a motion by the Government to file a sur-reply. IV. Conclusion For the foregoing reasons, the Court will grant Plaintiff's Motion for an Extension of Time and deny Plaintiff's Motion Requesting Appointment of Counsel. Berry will have until Friday, April 17 to file a reply memorandum. The Court will set a hearing date on the Show Cause Order for Friday, May 1, 10:00 at a.m. An appropriate Order will Virainia , Virginia issue. James C. Cacher Cacheris UNITED STATES DISTRICT COU UNITED STATES DISTRICT COURT JUDGE
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