United States District Court, D. New Mexico
ORDER ON PENDING MOTIONS
MATTER is before the Court on the letter request for
appointment of counsel (Doc. 3), letter motion to amend the
complaint (Doc. 5), letter motions to compel (Doc. 7, 9), and
letter requests “[a]mending all 3 case numbers (above)
as one” (Doc. 15, 16) filed by Plaintiff James
Fitzpatrick. The Court will grant the request to amend and
deny all other requests.
for Appointment of Counsel:
is no right to appointment of counsel in a civil rights case.
Instead, the decision whether to request assistance of
counsel rests in the sound discretion of the Court.
Beaudry v. Corrections Corp. of America, 331 F.3d
1164, 1169 (10th Cir.2003); MacCuish v. United
States, 844 F.2d 733, 735 (10th Cir.1988). In
determining whether to appoint counsel, the district court
should consider the merits of the litigant's claims, the
nature and complexity of the factual and legal issues, and
the litigant's ability to investigate the facts and to
present his claims. Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir.2004). The Court
has reviewed the complaint and subsequent filings in light of
the foregoing factors. Plaintiff appears to understand the
issues in the case and to be representing himself in an
intelligent and capable manner. See Lucero v.
Gunter, 52 F.3d 874, 878 (10th Cir. 1995). Accordingly,
the Court will deny the letter request for appointment of
counsel (Doc. 2).
Fitzpatrick has filed a letter request seeking to amend his
Complaint. (Doc. 5). Under Fed.R.Civ.P. 15(a), a party may
amend his pleading one as a matter of course within 21 days
after serving it. Fed.R.Civ.P. 15(a)(1)(A). Plaintiff
Fitzpatrick's request to amend was submitted to the Court
less than 21 days after filing of his original Complaint.
Therefore, Fitzpatrick may amend as a matter of right under
Rule 15, and the Court will accordingly grant his letter
motion to amend.
Fitzpatrick has filed two letter motions to compel. (Doc. 7,
9). Because Plaintiff is a prisoner proceeding pro se, the
Court is obligated to conduct a preliminary screening of the
Complaint. See 28 U.S.C. § 1915A. Whenever a
prisoner brings a civil action against government officials,
the Court is obligated to screen the prisoner's complaint
or petition. 28 U.S.C. § 1915A. Section 1915A states:
“The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
governmental entity.” . . .
On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
28 U.S.C. § 1915A(a) and (b). Requests for service of
process, discovery, to compel, or to submit proof are
premature and unavailable prior to the Court's completion
of its screening obligation. See Jones v. Bock, 549
U.S. 199, 213-214 (2007). If Plaintiff's Complaint is not
dismissed on initial screening, the Court will enter further
orders governing service of process, discovery, and
scheduling. The Court will deny Plaintiff Fitzpatrick's
letter motions to compel as premature.
to Consolidate Cases as One:
Fitzpatrick has also filed two letters “[a]mending all
3 case numbers [CV 18-00706, CV 18-00730, and CV 18-00735] as
one.” (Doc. 15, 16). The Court construes the letters as
requests to consolidate and amend the three pending cases.
The decision whether to consolidate actions involving common
questions of law or fact is committed to the sound discretion
of the court. Shump v. Balka,574 F.2d 1341, 1344
(10th Cir.1978). In deciding whether to grant a motion to
consolidate, the court should initially consider whether the
cases to be consolidated involve a common question of law or
fact. If there is a common question, the court should weigh
the interests of judicial convenience in consolidating the
cases against the delay, confusion, and prejudice that
consolidation might cause. See Servants of the Paraclete
v. Great American Insurance Co., 866 F.Supp. 1560, 1572
(D.N.M. 1994). The purpose of Rule 42(a) is to give the court
broad discretion to decide how cases on its docket are to ...