United States District Court, M.D. Georgia, Macon Division
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
pending are Plaintiff's motions requesting that the Court
order Defendants to file an answer (ECF No. 19), for default
judgment (ECF No. 21), to amend (ECF No. 24, 25), and to
appoint (ECF No. 27). Plaintiff's motion for an answer is
denied as moot-without discussion-since Defendants filed an
Answer on March 20, 2017. (ECF No. 20.) Similarly,
Plaintiff's motion for default judgment is denied as
Defendants timely answered. Plaintiff's motion to appoint
is denied and his motions to amend are granted as explained
Motion for Default Judgment
moves for default judgment because he believes that
Defendants failed to timely answer or otherwise respond to
his Complaint. See Letter 1, Mar. 25, 2017, ECF No.
21. Service was ordered in this case on January 12, 2017.
(ECF No. 13.) The Process Receipt and Return and Waiver of
Service of Summons were not mailed until January 17, 2017.
(ECF No. 15.) Defendant Walker filed his waiver of service on
February 28, 2017 (ECF No. 19). Defendants then filed an
answer by the sixty-day deadline assuming waiver of
service-March 20, 2017. (ECF No. 20.)
of the Federal Rules of Civil Procedure provides that a clerk
“must enter [a] party's default” when that
party “failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” Federal
Rules of Civil Procedure Rule 4 covers the issue of service.
Rule 4(d) states that when a waiver of service is requested,
as was in this case, a defendant must be given “a
reasonable time of at least 30 days after the request was
sent” to return the waiver. Fed.R.Civ.P. 4(d)(1)(F).
Additionally, if a defendant files a waiver, he has “60
days after the request was sent” to file an answer or
responsive pleading to the complaint. Fed.R.Civ.P. 4(d)(3).
outlined above, Defendants timely filed their answer to the
Complaint on March 20, 2017. Defendants are thus not in
default. Plaintiff's letter motion seeking default (ECF
No. 21) is denied.
Motion to Appoint Counsel
mailed a letter to the Court on April 23, 2017 which was
docketed as a motion for appointment of counsel. (ECF No.
27.) This is Plaintiff's second request for appointed
counsel. See Mot. for Appointment of Counsel, ECF
No. 3. As was previously explained to Plaintiff, under 28
U.S.C. § 1915(e)(1), the Court “may request an
attorney to represent any person unable to afford
counsel.” There is, however, “no absolute
constitutional right to the appointment of counsel” in
a § 1983 lawsuit. Poole v. Lambert, 819 F.2d
1025, 1028 (11th Cir. 1987) (per curiam). 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 claims and the complexity of the
issues presented. Holt v. Ford, 862 F.2d 850, 853
(11th Cir. 1989) (en banc). The facts stated in
Plaintiff's Complaint are not complicated, and the law
governing Plaintiff's claims is neither novel nor
complex. Plaintiff's renewed motion to appoint counsel
(ECF No. 27) is accordingly denied.
Motions to Amend
currently has two motions to amend pending. In the first,
filed April 2, 2017, he seeks leave to amend to correct
perceived deficiencies in his Complaint. Mot. to Am. 2, ECF
No. 24. This motion does not contain a proposed amended
complaint. Plaintiff then filed a second motion to amend on
April 11, 2017, in which he adds additional factual
allegations-primarily concerning exhaustion-and attaches two
grievance receipts. Second Mot. to Am. 3, 5-7, ECF No. 25.
Both of these motions were filed within twenty-one days after
service of the Answer. Since Plaintiff's first motion to
amend did not contain a proposed amended complaint, the Court
construes the two motions together and grants Plaintiff's
request to amend as a matter of course under Federal Rule of
Civil Procedure 15(a)(1)(B). The allegations in the Amended
Complaint filed on April 11, 2017, and the documents attached
thereto, shall be considered in this case. No preliminary
review of Plaintiff's Amended Complaint is necessary at
this time as Plaintiff does not add any new claims or
reasons explained above, Plaintiff's motion to answer
(ECF No. 19), motion for default (ECF No. 21), and motion to
appoint (ECF No. 27) are denied. Plaintiff's motions to
amend (ECF No. 19, 24) are granted.