Opinion
CIVIL ACTION 18-389-SDD-EWD
04-30-2019
STEPHEN REAMS v. KIRSTJEN M. NIELSEN, SECRETARY OF DEPARTMENT OF HOMELAND SECURITY
RULING
Local Rule 7(f) of the Middle District of Louisiana requires that memoranda in opposition to a motion be filed within twenty-one (21) days after service of the motion.
In the present case, a Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6) was electronically filed by Defendant, Kirstjen M. Nielsen, Secretary of Department of Homeland Security. Although Plaintiff, who is pro se, filed a timely Opposition to this motion, his Opposition is unresponsive to the substantive arguments raised by Defendant and only expresses his opposition to the Court's refusal to appoint counsel for him in this matter. Thus, it does not constitute a proper opposition under Rule 7(f).
Rec. Doc. No. 32.
Rec. Doc. No. 38.
The Magistrate Judge conducted a Spears hearing in this matter and also addressed Plaintiff's request for appointment of counsel. In a well-reasoned opinion, the Court explained why Plaintiff's request for appointment of counsel was denied. Plaintiff was also advised of his obligations in representing himself in a pro se capacity.
Rec. Doc. No. 10.
Rec. Doc. No. 13.
Id. at 6.
Defendant's Motion clearly outlines the pleading deficiencies in Plaintiff's Complaint. Rather than attempt to cure these deficiencies, Plaintiff continues to seek the appointment of counsel although he fails to meet the exceptional circumstances standard. The Court acknowledges that "pro se pleadings are held to less stringent standards than pleadings drafted by lawyers," and "pro se pleadings must be treated liberally." Nevertheless, Plaintiff is advised that, "a pro se litigant is not 'exempt ... from compliance with the relevant rules of procedural and substantive law.' A pro se litigant is not entitled to greater rights than would be a litigant represented by a lawyer."
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
U.S. v. Robinson, 78 F.3d 172, 174 (5th Cir.1996); Priester v. Lowndes County, 354 F.3d 414, 418 (5th Cir. 2004).
NCO Financial Systems, Inc. v. Harper-Horsley, No.07-4247, 2008 WL 2277843 at *3 (E.D.La. May 29, 2008), quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).
Id., citing Birl, 660 F.2d at 593.
Accordingly, based on the lack of substantive opposition to Defendant's Motion, it is deemed to be unopposed, and further, after reviewing the record, the Court finds that the Motion has merit as a matter of law. However, considering Plaintiff's pro se status, and the fact that Plaintiff has not sought leave to amend his Complaint in this matter, the Court will DENY Defendant's Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6) without prejudice to the right to re-urge and allow Plaintiff to file an Amended Complaint on or before May 24, 2019. Should Plaintiff fail to amend his Complaint, this matter will be dismissed with prejudice.
Rec. Doc. 32. --------
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on April 30, 2019.
/s/ _________
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA