United States District Court, E.D. North Carolina, Western Division
MARION L. SHERROD, Plaintiff,
GEORGE T. SOLOMON, FELIX TAYLOR, COLBERT L. RESPASS, NURSE PATTERSON, SEAN DILLARD, CAPTAIN OLIVER, MARCEL SLEDGE, HIRAM BEASLEY, and RAHIM AKBAR, Defendants.
W. FLANAGAN United States District Judge.
a state inmate, filed this civil rights action pro
se pursuant to 42 U.S.C. § 1983. The matter now is
before the court on plaintiff's motions for summary
judgment (DE 74), motion to amend his complaint (DE 82),
motion to supplement his motion for summary judgment (DE 83),
motion for judgment as a matter of law (DE 90), motion for an
extension of time (DE 91, 97), motion to appoint counsel (DE
93), and motion for relief from judgment (DE 96). Also before
the court is defendants' motion for summary judgment (DE
84) pursuant to Federal Rule of Civil Procedure 56(a).
Defendants responded to plaintiff's motion for summary
judgment and first motion for an extension of time, but did
not respond to plaintiff's remaining motions. Plaintiff
did not respond to defendants' motion for summary
judgment. In this posture, the issues raised are ripe for
Motion to Amend the Complaint
February 21, 2017, plaintiff sought leave to amend his
complaint to include additional facts. Plaintiff filed his
motion to amend subsequent to the November 23, 2016, deadline
for filing amended pleadings set forth in the court's
September 15, 2016, case management order. Plaintiff requires
leave of court to amend is complaint. See
Fed.R.Civ.P. 15(a). Under the Federal Rules of Civil
Procedure, a party who requests leave to amend after the date
specified in the case management order must satisfy two
prerequisites. The party must demonstrate first that there is
some “good cause” why the court should not adhere
to the dates specified in the scheduling order. Fed.R.Civ.P.
16(b); see Forstmann v. Culp, 114 F.R.D. 83, 85
(M.D. N.C. 1987). If the party shows “good cause”
to the court's satisfaction, the party then must
demonstrate that leave to amend is proper under Rule 15(b).
demonstrate “good cause” the amending party must
show why the deadline in the scheduling order could not
“reasonably be met despite the diligence of the party
seeking the extension.” Forstmann, 114 F.R.D.
at 85 (internal quotations omitted). “Rule 16(b)'s
‘good cause' standard is much different than the
more lenient standard contained in Rule 15(a).”
Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986
F.Supp. 959, 980 (D.S.C. 1997) (citations omitted),
aff'd, 129 F.3d 116 (1997). “Unlike Rule
15(a)'s liberal amendment policy which focuses on the bad
faith of the party seeking to interpose an amendment and the
prejudice to the opposing party, Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
Consistent with the diligence requirement, carelessness,
inadvertence, mistake or neglect do not constitute good cause
for amending the pleading after the date specified in the
scheduling order. Dilmar Oil Co., Inc., 986 F.Supp.
at 980 (citing Johnson, 975 F.2d at 609);
Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D.
439, 447 (W.D.N.Y. 1997).
case, plaintiff failed to demonstrate good cause for
modifying the scheduling order to allow a motion to amend the
complaint at this late date. See Health South Rehab.
Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1010
(4th Cir. 1996) (holding that undue delay accompanied by
futility or prejudice to the non-movant is sufficient reason
for denying leave to amend under Rule 15(a)). Accordingly,
plaintiff's motion to amend is DENIED.
Plaintiff's Motion to Supplement his Motion for Summary
seeks leave to supplement his motion for summary judgment in
order to provide a “more complete record of medical
evidence.” For good cause shown, plaintiff's motion
Motion for Judgment as a Matter of Law
moves for judgment as a matter of law arguing that defendants
failed to timely respond to plaintiff's motion for
summary judgment. On January 13, 2017, the court granted
defendants an extension of time, until February 23, 2017, to
respond to plaintiff's motion for summary judgment.
Defendants then timely filed their response to
plaintiff's motion for summary judgment on February 22,
2017. Based upon the foregoing, plaintiff's motion for
judgment on the pleadings is DENIED.
Motions for an Extension of Time
requests an extension of time to respond to defendants'
motion for summary judgment. For good cause shown,
plaintiff's motions are GRANTED. Plaintiff must file his
response to defendants' motion for summary judgment by
May 17, 2017.
Motion to Appoint Counsel
filed a motion to appoint counsel to assist with litigating
this action. This is plaintiff's third motion to appoint
counsel. As stated in the court's prior orders denying
plaintiff's requests for counsel, there is no
constitutional right to counsel in civil cases, and courts
should exercise their discretion to appoint counsel for
pro se civil litigants “only in exceptional
cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th
Cir. 1975). The existence of exceptional circumstances
justifying appointment of counsel depends upon “the
type and complexity of the case, and the abilities of the
individuals bringing it.” Whisenant v. Yuam,
739 F.2d 160, 163 (4th Cir. 1984), abrogated on other
grounds by Mallard v. U.S. Dist. Court for the S. Dist. of
Iowa, 490 U.S. 296 (1989) (quoting Branch v.
Cole, 686 F.2d 264 (5th Cir. 1982)); see also Gordon
v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (“If
it is apparent . . . that a pro se litigant has a colorable
claim but lacks capacity to present it, the district court
should appoint counsel to assist him.”). Because