United States District Court, D. South Carolina, Florence Division
Timothy M. Cain United States District Judge
Clifton Donell Lyles, proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983 on September 19, 2016. (ECF
No. 1, Compl.). In accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02, D.S.C., this matter was referred
to a magistrate judge for pretrial handling. Defendants filed
a motion for summary judgment on January 23, 2017. (ECF No.
20). Before the court is the Magistrate Judge's Report
and Recommendation (“Report”), recommending that
the court grant the motion for summary judgment as to
Defendant Herring and deny it as to Defendants Hamby, Miller,
and Broach. (ECF No. 31). Plaintiff was advised of his right
to file objections (ECF No. 31-1), but he did not file any
objections and the time to do so has now run. Defendants
timely filed objections (ECF No. 37), and a motion to amend
their answer to raise the defense of collateral estoppel
and/or issue preclusion (ECF No. 38). Plaintiff did not file
any response to Defendants' objections or motion to
amend, but rather filed a motion for the appointment of
counsel (ECF No. 45). Defendants filed a response opposing
this motion (ECF No. 48).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In that case, the court reviews the
Report only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
Report, the Magistrate Judge recommends granting summary
judgment as to Defendant Herring. Plaintiff did file any
objections to this recommendation. Finding no clear error,
the court adopts this part of the Report, and grants summary
judgment to Defendant Herring.
Report, the Magistrate Judge also recommends denying summary
judgment as to the remaining Defendants Hamby, Miller, and
Broach. These Defendants filed objections to this part of the
Report, and also filed a motion to amend their answer to
raise the defense of collateral estoppel/issue preclusion
based on a state court action filed by Plaintiff in which
judgment was entered on May 17, 2017, Lyles v. South
Carolina Department of Corrections, C/A No.
2016-CP-40-5671. (ECF No. 38-4). These Defendants asked the
court to consider the preclusive effect of the state court
judgment and/or allow them to file a supplemental motion for
the court must address Defendants' motion to amend their
answer. After the deadlines set forth in a scheduling order
have passed, the “good cause” standard of Federal
Rule of Civil Procedure 16 must be satisfied. Nourison
Rug Corp. v. Parvizian, 535 F.3d 295 (4th Cir. 2008);
CBX Techs., Inc. v. GCC Techs., LLC, No.
JKB-10-2112, 2012 WL 3038639, at *3 (D. Md. July 24, 2012)
(“[O]nce the scheduling order's deadline for
amendment of the pleadings has passed, a moving party first
must satisfy the good cause standard of Rule 16(b); if the
moving party satisfies Rule 16(b), the movant then must pass
the tests for amendment under [Rule] 15(a).”). The
“good cause” requirement of Rule 16(b) is unlike
the more lenient standard of Rule 15(a) in that Rule 16(b)
“does not focus on the bad faith of the movant, or the
prejudice to the opposing party, ” but focuses on the
diligence of the party seeking amendment. Dilmar Oil Co.,
Inc. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980
(D.S.C. 1997); see also Rassoull v. Maximus, Inc.,
209 F.R.D. 372, 374 (D. Md. 2002) (“[A] court's
scheduling order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel
without peril.”). “Good cause” means that
scheduling deadlines cannot be met despite a party's
diligent efforts. Dilmar Oil Co., 986 F.Supp. at 980
(citing 6A Wright, Miller & Kane, Federal Practice and
Procedure § 1522.1 at 231 (2d ed. 1990)); In re Lone
Star Indus., Inc. Concrete R.R. Cross Ties Litigation,
19 F.3d 1429, 1994 WL 118475, at *11 (4th Cir. April 7, 1994)
(unpublished) (finding good cause when facts were discovered
after the amendment deadline); see also Fed. R. Civ.
P. 16(b) advisory committee's note to 1983 amendment.
“Carelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief.”
Dilmar Oil Co., 986 F.Supp. at 980.
it was only recently that a judgment was entered in the state
court action, Defendants were unable to amend their answer to
assert a collateral estoppel/issue preclusion defense by the
December 22, 2016, which was the deadline set out in the
Scheduling Order for the amendment of pleadings. Based on the
foregoing, the court finds good cause for Defendants not to
have timely moved to amend their answer. Moreover, as noted
above, Plaintiff has not filed any opposition to the motion
to amend. Accordingly, the court grants Defendants'
motion to amend their answer. Defendants are to file their
amended answer within ten days of the filing of this order.
After Defendants file their amended answer, the court will
allow them to file an amended motion for summary judgment.
Plaintiff's motion to appoint counsel, the court denies
the motion at this time. There is no constitutional right to
have counsel appointed in a civil case. Whisenant v.
Yaum, 739 F.2d 160, 163 (4th Cir.1984). The court has
discretion to appoint counsel for an indigent in a civil
action. 28 U.S.C. § 1915(d); Smith v.
Blackledge, 451 F.2d 1201, 1203 (4th Cir.1971). However,
the court may appoint counsel in § 1983 cases only when
exceptional circumstances exist. Cook v. Bounds, 518
F.2d 779, 780 (4th Cir.1975). The Fourth Circuit has stated
that the existence of exceptional circumstances “will
turn on the quality of two basis factors - the type and
complexity of the case, and the abilities of the individuals
bringing it.” Brock v. City of Richmond, 983
F.2d 1055 (4th Cir.1993) (quoting Whisenant, 739
F.2d at 163).
review, the court finds that, at this time, this is not the
type of case which presents factors that clearly reflect a
need for the Plaintiff to have counsel appointed. The case
itself does not appear atypically complex and the Plaintiff
has shown himself more than able to represent his interests
to this point in the lawsuit.
based on the foregoing, the court GRANTS Defendants'
Motion to Amend (ECF No. 38); adopts in part the Magistrate
Judge's Report (ECF No. 31); and GRANTS summary judgment
as to Defendant Herring. The court declines to adopt the part
of the Report which recommends denying summary judgment on
the merits as to Defendants Hamby, Miller, and Broach.
Instead, the court DENIES without prejudice Defendants Hamby,
Miller, and Broach's Summary Judgment motion (ECF No.
20). Defendants are to file their amended answer within ten
days of the filing of this order. Further, this action is
recommitted to the Magistrate Judge for further pretrial
handling. Additionally, the court DENIES Plaintiff's
motion to appoint counsel (ECF No. 45).
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...