United States District Court, M.D. Georgia, Macon Division
42 U.S.C. § 1983
KEVIN WEST, Plaintiff, Pro se, GLENNVILLE, GA.
ORDER AND REPORT AND RECOMMENDATION
Stephen Hyles, UNITED STATES MAGISTRATE JUDGE.
Currently pending before the Court are Plaintiff's motions to amend his complaint (ECF Nos. 29, 33) and motion to appoint counsel (ECF No. 20). Also pending is Defendant Temple's motion to dismiss (ECF No. 25) the complaint. For the reasons explained below, Plaintiff's motion to appoint is denied, his first motion to amend is granted, and it is recommended that his second motion to amend be denied. It is also recommended that Defendant Temple's motion to dismiss be denied.
Plaintiff alleges that on July 30, 2013, he was being taken to court by Sergeants Copeland and Sirmans. (Compl. 5.) The transport bus stopped at Dooly State Prison to let inmates on and off the bus. According to Plaintiff, Copeland and Sirmans directed Plaintiff and the other inmates who were to stay on the bus to exit. (Id.) While Plaintiff was off the bus, Defendant Sergeant Temple, " for no reason, " allegedly slammed Plaintiff, who was in waist chains, leg irons, and handcuffs, onto the concrete. (Id.) Another unidentified office then dragged Plaintiff by his leg irons, while Defendant Temple " held [Plaintiff's] arms on the ground and had his knee in [Plaintiff's] back[, ]" which left Plaintiff's elbows and fingers " badly" scraped. (Compl. 5.) Plaintiff thereafter asked Defendant Captain Williams for a grievance form, but was refused one. Plaintiff believes that the assault " would have never happened, " but for Copeland and Sirmans ordering Plaintiff to exit the bus.
Plaintiff originally brought this action against Sergeants Copeland, Sirmans, Temple, and Captain Williams for failure to provide him with grievance forms and for cruel and unusual punishment. (Compl. 5.) After preliminary review, only the claim against Sergeant Temple for a violation of Plaintiff's Eighth Amendment right to be free of excessive force was allowed to proceed. (Order 1-2, Apr. 28, 2014, ECF No. 21.) Defendant Temple thereafter moved to dismiss for, inter alia, failure to state a claim and qualified immunity. (Br. in Supp. of Mot. to Dismiss 3-9, ECF No. 25-1.) In response, Plaintiff filed a motion to amend his complaint (ECF No. 29) in addition to his opposition to the motion (ECF No. 30). After the motion to dismiss was fully briefed, Plaintiff also moved to amend his complaint to add as a defendant the unidentified " John Doe" officer that he alleges dragged him across the ground at Dooly State Prison. (Second Mot. to Am. 1-2, ECF No. 33.) These motions are now ripe for review.
I. Motion to Appoint Counsel
This is Plaintiff's second motion to appoint counsel. As was previously explained to Plaintiff, under 28 U.S.C. § 1915(e)(1), the district court " may request an attorney to represent any person unable to afford counsel." However, there is " no absolute constitutional right to the appointment of counsel" in a section 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989). Plaintiff has set forth the essential factual allegations underlying his claims and the Court will determine whether Plaintiff's allegations support a colorable legal claim. This process is routine in pro se prisoner actions and therefore " exceptional circumstances" justifying appointment of counsel do not exist. Accordingly, Plaintiff's second motion to appoint counsel (ECF No. 20) is denied.
II. Motions to Amend
Plaintiff filed his first motion to amend as an amendment as a matter of course pursuant to Federal Rules of Civil Procedure Rule 15(a). (Mot. to Am. 1-2, ECF No. 29.) It is clear to the Court that Plaintiff was attempting to use Rule 15(a)(1)(B) to file this amendment as he filed the amendment in response to a motion under Rule 12(b). However, Plaintiff did not file his motion in the allotted twenty-one days. Fed.R.Civ.P. 15(a)(1)(B). Defendant's motion to dismiss was filed on May 16, 2014. Plaintiff had twenty-one days, until June 9, 2014, within which to timely file a motion to amend as a matter of course. Plaintiff's motion to amend was not signed until July 6, 2014, almost thirty days late. Regardless, the Court will allow Plaintiff's amendment under Rule 15(a)(2) as this is the first time that Plaintiff seeks to amend his Complaint. The Court will consider the information contained in the " carbon-copy grievance" attached to his motion to amend as part of his Complaint. (Mot. to Am. 2.)
After the parties had fully briefed the motion to dismiss, Plaintiff filed his second motion to amend (ECF No. 33) in which he seeks to add as a John Doe defendant the officer he alleges dragged him on the concrete at Dooly State Prison. He inaccurately states that " [t]he Plaintiff in his original complaint named a C.E.R.T. member John Doe Defendant." (Second Mot. to Am. 1.) Nowhere in Plaintiff's complaint, either in the caption or in the section for listing defendants, did he name a John Doe C.E.R.T. officer. (Compl. 1, 4.) His only mention of this officer in his complaint is that he was " dragged by my leg irons by another C.E.R.T. member[.]" (Compl. 5.) Thus, Plaintiff actually seeks at this point to add an additional defendant whom he admittedly cannot identify except for as a " C.E.R.T. member." (Second Mot. to Am. 1.)
This motion to amend likewise falls under Rule 15(a)(2) which requires leave of court. Such leave should be " freely give[n]" when " justice so requires." Fed.R.Civ.P. 15(a)(2). However, " a district court may properly deny leave to amend the complaint under Rule 15(a) when such amendment would be futile." Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 ...