MEMORANDUM DECISION AND ORDER DENYING MOTION TO APPOINT COUNSEL, DENYING MOTION FOR EXPEDITED DISCOVERY and GRANTING AND DENYING IN PART PLAINTIFF'S MOTIONS FOR EXTENSION OF TIME
BROOKE WELLS, Magistrate Judge.
District Judge Robert J. Shelby has referred this case to Magistrate Judge Brooke C. Wells pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth more fully below, the Court
This case arises from Plaintiff's housing situation. Plaintiff, a single homeless male who is pro se and proceeding in forma pauperis,
Generally, Plaintiff asserts Defendants discriminated against him in their use and disbursement of certain federal funds, specifically Emergency Solutions Grants ("ESG") due to his status as a non-married, non-mentally ill person. Plaintiff's Second Amended Complaint alleges that Defendants are discriminating against single individuals who are homeless and instead giving homeless families and individuals with mental illness priority for federal housing funds in violation of the Fair Housing Act. Plaintiff also alleges that Defendants' act of disbursing federal ESG funds to Defendant The Road Home violates the equal protection and due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. Plaintiff further alleges that the Supremacy Clause of the U.S. Constitution has been violated by Defendant's enforcement of Utah Code Ann. § 35A-8-602 and seeks an injunction precluding its enforcement.
A. Motion to Appoint Counsel
Plaintiff requests counsel be appointed for himself as well as for a proposed class action. Plaintiff seeks the appointment of counsel pursuant to 28 U.S.C. § 1915 and 42 U.S.C. § 3613(b).
Generally, as a civil litigant, Plaintiff has no constitutional right to counsel.
Here, the Court finds that Plaintiff has not met his burden for the appointment of counsel under the IFP Statute. First, as to the merits of litigant's claims, Plaintiff is correct that "... just because you file a motion to dismiss, doesn't mean your motion is going to be granted."
In addition to seeking the appointment of counsel under the IFP Statute, Plaintiff seeks the appointment of counsel pursuant to 42 U.S.C. § 3613(b)(1) which provides: "[u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may—(1) appoint an attorney for such person..."
In the 10th Circuit, four factors must be considered by courts in making the decision whether to grant a Plaintiff's request for appointed counsel under 42 U.S.C. § 2000e-5: "(1) the plaintiff's financial ability to afford counsel; (2) his diligence in attempting to secure counsel; (3) the merits of his case; and (4) in close cases, the plaintiff's capacity to prepare and present the case without the aid of counsel."
Here, although the Plaintiff has not submitted a separate financial affidavit which demonstrates his current financial status in relation to the Motion for Appointment of Counsel, it is clear based upon the Plaintiff's statements in a number of his pleadings that he is homeless and due to his uncertain employment status, does not have the financial ability to afford counsel. Second, Plaintiff has indicated that he has contacted various legal service providers for assistance with copying of his legal papers. However, Plaintiff has not presented sufficient evidence as to his efforts to secure counsel for his case. Next, as discussed above, Plaintiff, for the purposes of appointing counsel has presented a colorable claim at this stage of the litigation. Finally, the Court finds that Plaintiff is well equipped to present his case without the assistance of counsel.
Therefore, the Court denies Plaintiff's Motion for Appointment of Counsel. However, should the case survive the pending Motions to Dismiss, the Court reserves the right to appoint counsel for Plaintiff if fundamental fairness so dictates.
B. Motion for Limited Expedited Discovery
Plaintiff seeks expedited discovery and argues that good cause exists to allow for such discovery in order for Plaintiff to demonstrate to the Court that he is not the only individual being discriminated against by Defendants' actions. Therefore, according to Plaintiff, "[i]t is imperative that counsel be appointed because the Plaintiff is not licensed counsel and therefore is unable to represent these other victims, to bring about an end" to Defendants' discriminatory and illegal policies involving housing in the state of Utah.
Generally, "a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)"
Here, Plaintiff states that he wishes to conduct "limited" expedited discovery "for purposes of securing additional evidence that supports his Motion for Appointment of Counsel and to be used in amending such motion."
The Court finds Plaintiff's Motion to be problematic in a number of respects. First, notwithstanding the Court's denial of Plaintiff's Motion for Appointment of Counsel, Plaintiff has failed to demonstrate good cause exists to grant this motion and allow for early discovery in the case. Upon review of the documents Plaintiff seeks, it is evident that none of the typical situations that allow for expedited discovery are of concern in this case. Namely, Plaintiff is not seeking a preliminary injunction, brings no claims for infringement or unfair competition and no evidence has been presented that demonstrates evidence is at risk for being lost or destroyed.
Moreover, the Court agrees with the Defendants that Plaintiff's discovery requests are not "limited" or "narrowly tailored" as required. Upon review, Plaintiff's discovery requests are arguably overbroad and quite burdensome for Defendants' to produce on an expedited basis. Further, it is not certain that such documentation would accomplish what Plaintiff is seeking to accomplish through his Motion. Therefore, for these reasons, in addition to denying Plaintiff's Motion for Appointment of Counsel, the Court denies Plaintiff's request for expedited discovery.
C. Motions for Extensions of Time
Finally, through two Motions for Extensions of Time, it is clear that Plaintiff is not only seeking additional time to respond to the pending Motions to Dismiss, but Plaintiff also seeks additional time to perform additional research so he can amend his Complaint again. As noted above, the Court has twice allowed Plaintiff to amend his Complaint. In addition, through the instant Motions for Extensions of Time, Plaintiff has not brought a separate Motion for Leave to Amend as required by both the Federal and Local Rules of Civil Procedure
As to Plaintiff's request for additional time to respond to the Motions to Dismiss, all Defendants except the Salt Lake County Defendants have clearly indicated that they are unopposed to Plaintiff's request.
CONCLUSION & ORDER
2) Plaintiff's Motion for Limited Expedited Discovery
3) Plaintiff's Motions for Extension of Time are GRANTED IN PART AND DENIED IN PART. The Court finds that a Reply Memorandum for the Motion to Appoint Counsel and Motion for Limited Expedited Discovery are unnecessary. However, Plaintiff shall have thirty days from the issuance of this Order in which to respond to the Defendants' Motions to Dismiss. However, Plaintiff will not be allowed to Amend his Complaint without bringing a formal Motion to Amend. Lastly, Plaintiff is directed to follow both the local and federal rules of Civil Procedure for all future motions brought before the Court.