United States District Court, M.D. Florida, Jacksonville Division
B. Toomey United States Magistrate Judge.
the Court is Plaintiff's motion for an extension of the
discovery deadline, leave to file an amended complaint, and
for the appointment of counsel (Doc. 23; Motion). With his
motion, Plaintiff submitted a proposed amended complaint,
which the Clerk docketed separately (Doc. 22; PAC).
original Complaint (Doc. 1), which Plaintiff filed on
December 12, 2018, Plaintiff names two Defendants, Lance
Moore and T. Sistrunk. He asserts an Eighth Amendment
excessive force claim related to an incident that occurred at
Suwannee Correctional Institution (SCI) on January 3, 2018.
Defendants answered the Complaint on March 7, 2019 (Doc. 14),
and the Court set deadlines for the completion of discovery
and the filing of dispositive motions. See Order (Doc. 15).
The Court thereafter granted Plaintiff's unopposed motion
to extend the deadlines, such that the discovery deadline was
extended to September 5, 2019, and the dispositive motion
deadline was extended to November 4, 2019. See Order
now seeks to add four defendants and numerous state-law
claims. See Motion at 2. In the PAC, Plaintiff
asserts two proposed defendants, Jackson and Rodgers, failed
to intervene in the use of force by the original Defendants.
PAC at 3. Plaintiff also seeks to add as defendants Jeremy
Powe and “the Wardens at [SCI].” Id. at
2. Plaintiff does not identify the “Wardens” by
name. Plaintiff's PAC identifies eighteen “legal
theories, ” including claims under the Eighth Amendment
for excessive force, conspiracy to commit excessive force,
and failure to intervene (two counts). The remaining fourteen
counts are state-law claims: common law battery; conspiracy
to commit common law battery; concert of action to commit
battery; aiding and abetting common law battery; common law
assault; conspiracy to commit common law assault; concert of
action to commit assault; aiding and abetting assault; common
law failure to intervene (two counts); negligent infliction
of emotional distress; common law outrage; negligent
supervision; and negligent retention.
do not oppose Plaintiff's motion to the extent Plaintiff
seeks leave to amend his complaint and requests an extension
of the discovery deadline (Doc. 25; Response). However,
Defendants object to Plaintiff's request for appointment
of counsel. See Response at 3. While Defendants do
not oppose Plaintiff's request to amend his complaint,
the Court is obliged to consider whether to grant the
to amend should be freely granted to promote the ends of
justice. Fed.R.Civ.P. 15(a)(2). When ruling on a motion to
amend, a court should consider whether there has been
“undue delay, undue prejudice to the defendants,
” and whether an amendment would be futile. Haynes
v. McCalla Raymer, LLC, 793 F.3d 1246, 1250 (11th Cir.
2015) (quoting Maynard v. Bd. of Regents of Div. of
Univs. of Fla. Dep't of Educ., 342 F.3d 1281, 1287
(11th Cir. 2003)). If Plaintiff was seeking only to add a
failure to intervene claim against Rogers and Jackson, his
PAC likely would pass muster. However, Plaintiff's PAC is
partially deficient in that some of his proposed claims would
be futile to allow, meaning they would not survive a motion
instance, Plaintiff seeks to assert conspiracy claims against
the named individuals for their alleged joint efforts to
inflict harm on him and conceal their actions. See PAC at
4-5, 7. As alleged, the intracorporate conspiracy doctrine
would likely bar Plaintiff's conspiracy claims because
the alleged actors work for one employer. See McAndrew v.
Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir.
2000). Because a conspiracy requires action by two or more
people, by its terms, a conspiracy cannot exist if a
plaintiff complains of acts by employees within an agency,
unless the plaintiff alleges acts of criminal wrongdoing.
Id. at 1034, 1036.
respect to proposed new defendants Powe and “the
Wardens, ” Plaintiff's allegations are
insufficient. Plaintiff attributes no factual allegations to
Powe other than to say Powe “authorize[d] [the] filing
of [false disciplinary] reports” against Plaintiff. PAC
at 5. Such conduct, if true, does not amount to a
constitutional violation. As to the “Wardens, ”
Plaintiff's use of the plural suggests he is referring to
more than one person. However, Plaintiff does not identify
any individuals by name. As such, it is unclear to whom
Plaintiff is referring, and the Court would be unable to
direct service of process.
Plaintiff's PAC would require the Court to exercise
supplemental jurisdiction over fourteen state-law claims.
Under 28 U.S.C. § 1367, a district court may exercise
supplemental jurisdiction over other claims that are related
to those over which the court has original jurisdiction. See
§ 1367(a). However, the decision to exercise
supplemental jurisdiction over state-law claims is vested in
the sound discretion of the district court. See Utopia
Provider Sys., Inc. v. Pro-Med Clinical Sys., L.L.C.,
596 F.3d 1313, 1328 (11th Cir. 2010) (“As a practical
matter, the district court is in the best position to weigh
the competing interests ... in deciding whether it is
appropriate to exercise supplemental jurisdiction.”)
(alteration in original) (quoting Lucero v. Trosch,
121 F.3d 591, 598 (11th Cir. 1997)). In the exercise of its
discretion, a district court may decline to exercise
supplemental jurisdiction over state-law claims when those
claims “substantially predominate over the claim or
claims over which the district court has original
jurisdiction.” § 1367(c)(2).
PAC includes numerous state-law claims, which predominate
over the § 1983 excessive force claim that has been
pending in this Court for almost a year. The Court has set
deadlines for the completion of discovery and the filing of
dispositive motions, and Plaintiff offers no basis upon which
the Court should exercise supplemental jurisdiction over his
numerous proposed state-law claims. For the foregoing
reasons, the Court finds Plaintiff's motion to amend his
complaint is due to be denied.
Plaintiff wishes to amend his complaint to add a failure to
intervene claim against Rogers and Jackson, he may do so. If
Plaintiff chooses to amend his complaint to add these two
individuals as defendants for their failure to intervene in
the alleged use of force incident, he must do so by December
2, 2019. Given the above, the Court finds an extension of the
deadlines is appropriate, and Plaintiff's motion is due
to be granted to that limited extent. The Court will set new
deadlines by separate Order.
respect to Plaintiff's request for the appointment of
counsel, the Court finds his motion is due to be denied. A
plaintiff in a civil case does not have a constitutional
right to counsel, and courts have broad discretion in
deciding whether to appoint counsel. Bass v. Perrin,
170 F.3d 1312, 1320 (11th Cir. 1999). A court should appoint
counsel in a civil case only in “exceptional
circumstances.” Id. In determining whether to
appoint counsel, a court may consider the type and complexity
of the case, whether the plaintiff can adequately investigate
and present his case, and whether the case will require skill
in presenting evidence and in cross-examination. Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (cited
with approval in Smith v. Fla. Dep't of Corr.,
713 F.3d 1059, 1065 n.11 (11th Cir. 2013)).
has not shown exceptional circumstances to warrant the
appointment of counsel at this time. This case is not so
complex legally or factually to prevent Plaintiff from
presenting the essential merits of his position to the Court,
and Plaintiff has demonstrated an ability to present facts
and argument on his own behalf. The Court may sua
sponte reconsider ...