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Queen v. Mildner

United States District Court, D. Kansas

March 19, 2019

(fnu) MILDNER, et al., Defendants.



         This matter is a civil rights action filed by a prisoner in federal custody. Plaintiff commenced this action while incarcerated in the United States Penitentiary-Leavenworth (USPL). He is presently incarcerated at the Federal Correctional Institution in Edgefield, South Carolina.

         In October 2017, the Court reopened this matter. The Court issues the present order to address several pending motions.

         Plaintiff's motions to amend (Docs. 86 and 87)

         Plaintiff seeks leave to amend the complaint to add a defendant, clarify that his claims are against the defendants in their individual capacities, and to add a claim for monetary damages. Defendants oppose these requests, and they note that plaintiff has filed multiple motions to amend the complaint in this action. A review of the record shows that plaintiff first filed an amended complaint approximately one month after he commenced this action (Doc. 9), then filed a motion for joinder (Doc. 11), a motion to dismiss party (Doc. 12), a motion to amend the amended complaint (Doc. 16), a second motion to amend the complaint (Doc. 17), and a third motion to amend the complaint (Doc. 19).

         By its order of February 2, 2006 (Doc. 35), the Court allowed those amendments but advised plaintiff that no further amendments would be allowed except upon a showing of good cause. However, after that order petitioner filed another motion to amend (Doc. 48) and a supplement to that motion (Doc. 52).

         The Court has considered petitioner's most recent motions to amend (Doc. 86[1] and Doc. 87) in light of this history and concludes that these motions should be denied. Under Rule 15(a)(1) of the Federal Rules of Procedure, a party may amend its pleading once as a matter of course within 21 days after service of a responsive pleading. Thereafter, a party may amend its pleading only with the consent of the opposing party or leave of the court. Leave should granted freely when justice so requires. Fed.R.Civ.P. 15(a)(2)-(3).

         In this case, plaintiff has offered no explanation why the material in the most recent requests to amend was not included earlier. The Court believes that he has been given considerable leeway in his pleadings to this point, as he has been allowed to amend the complaint and to submit other pleadings that attempt to introduce additional facts and argument. Having considered the record, the Court denies the requests to amend.

         Plaintiff's motion to appoint counsel (Doc. 86)

         Plaintiff moves for the appointment of counsel (Doc. #86). There is no constitutional right to the appointment of counsel in a civil matter. Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). Rather, the decision whether to appoint counsel in a civil action lies in the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). The party seeking the appointment of counsel has the burden to convince the court that the claims presented have sufficient merit to warrant the appointment of counsel. Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2016)(citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the movant] in presenting his strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)). The Court should consider “the merits of the prisoner's claims, the nature and complexity of the factual and legal issues, and the prisoner's ability to investigate the facts and present his claims.” Rucks, 57 F.3d at 979.

         The Court has considered the record and declines to appoint counsel. The plaintiff is capable of presenting the factual and legal bases for his claims, and it does not appear that the issues are unusually complicated.

         Plaintiff's motion for judgment on the pleadings or motion for summary judgment (Doc. 88)

         Plaintiff seeks judgment on the pleadings, or, in the alternative, summary judgment. Federal Rule of Civil Procedure 12(c) states that “[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” In this case, because there had been no response by defendants, the pleadings were not closed, and plaintiff's motion therefore is not proper.

         Likewise, “[j]udgment on the pleadings is appropriate only when the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to a judgment as a matter of law.” Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012)(quoting Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1244(10th Cir. ...

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