United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's pro se
“motion to deny defendants' denial of
consent” (Doc. No. 22); motion for physical examination
(Doc. No. 23); motion for referral to alternative dispute
resolution (Doc. No. 24); and motion for appointment of
counsel (Doc. No. 25). For the following reasons,
Plaintiff's motions will be denied.
to deny denial of consent to magistrate judge
filed this action on January 16, 2019, and the case was
assigned to United States Magistrate Judge John M.
Bodenhausen, pending consent to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). A review of the
Court's records shows that Plaintiff consented to
magistrate judge jurisdiction on February 5, 2019. Defendants
entered their appearance on May 29, 2019; on July 3, 2019,
Defendants declined to consent to magistrate judge
jurisdiction. The case was then randomly reassigned to the
undersigned. In support of his motion, Plaintiff argues that
Defendants failed to submit their notice regarding magistrate
judge jurisdiction within twenty days after entry of their
appearance in the case and should therefore be compelled to
submit to magistrate judge jurisdiction.
United States magistrate judge may conduct all proceedings in
a civil matter “upon consent of the parties.” 28
U.S.C. § 636(c)(1). Such consent must be obtained from
all parties to the litigation and a failure to obtain consent
from all parties deprives a magistrate judge of jurisdiction.
See, e.g., Roberts v. Manson, 876
F.2d 670, 671-72 (8th Cir. 1989) (“magistrates are not
article III judges and therefore have jurisdiction only
pursuant to statute”).
Rule of Civil Procedure 73(b) provides that when a magistrate
judge has been designated to exercise civil trial
jurisdiction, the clerk shall give written notice to the
parties of their opportunity to consent to the exercise by a
magistrate judge of civil jurisdiction over the case, as
authorized by 28 U.S.C. § 636(c). If, within the period
specified by local rule, the parties agree to a magistrate
judge's exercise of such authority, they shall execute
and file a joint form of consent or separate forms of consent
setting forth such election.
Court considers Defendants' failure to file a notice of
consent within the specified period to be a withholding of
consent. Consent must be voluntary, and parties are free to
withhold consent without adverse consequences. See
Fed.R.Civ.P. 73(b)(2); 28 U.S.C. § 636(c)(2).
Accordingly, Plaintiff's motion to effectively compel
Defendants to submit to magistrate judge jurisdiction will be
for physical examination
requests this Court order that an independent physical
examination be provided to him to evaluate his medical
condition. Plaintiff does not indicate under what rule he
proceeds, but the Court assumes it is Fed.R.Civ.P. 35. Rule
35, however, does not vest the court with authority to
appoint an expert to examine a party wishing an examination
of himself. Instead, under appropriate circumstances, it
allows the Court to order a party to submit to a physical
examination at the request of an opposing party. Grace v.
Hakala, No. 1:11CV81 LMB, 2012 WL 2190902, at *3 (E.D.
Mo. June 14, 2012) (citations omitted). Moreover, Plaintiff
does not indicate who will bear the cost for the proposed
examination. Regardless, the Court does not have authority to
appoint an expert witness at government expense for a civil
litigant, even an indigent one, and a litigant's in forma
pauperis status does not entitle him or her to the waiver of
payment of ordinary expenses of litigation. Id.
Neither the Court nor defendants are required to pay for a
plaintiff's expert witness. See,
e.g., U.S. Marshals Service v. Means, 741
F.2d 1053, 1057 (8th Cir. 1984) (There is no statutory
authority to courts to authorize payment of expert witness
fees and expenses in civil suits for damages brought by
indigent inmates.); Boring v. Kozakiewicz, 833 F.2d
468, 474 (3d Cir. 1987) (same). Accordingly, the Court will
deny Plaintiff's motion for a physical examination.
for referral to ADR
Court does not routinely refer prisoner actions to ADR.
See Barnett v. Lewis, No. 1:18-CV-0003 SNLJ, 2018 WL
4039367, at *1 n.1 (E.D. Mo. Aug. 23, 2018). Pursuant to the
Case Management Order issued July 3, 2019, all discovery in
this case must be completed by February 3, 2020. (Doc. No. 20
at ¶ 4). At that time, Plaintiff may wish to renew his
motion for ADR prior to the matter being set for trial. The
Court will therefore deny Plaintiff's motion to refer
this case to ADR without prejudice to refiling.
for appointment of counsel
is no constitutional or statutory right to appointed counsel
in civil cases. Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers
several factors, including (1) whether the plaintiff has
presented non-frivolous allegations supporting his or her
prayer for relief; (2) whether the plaintiff will
substantially benefit from the appointment of counsel; (3)
whether there is a need to further investigate and present
the facts related to the plaintiffs allegations; and (4)
whether the factual and legal issues presented by the action
are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
After considering these factors, the Court finds that the
facts and legal issues involved are not so complicated that
the appointment of counsel is warranted at this time. As
such, the Court will deny Plaintiffs motion for appointment
of counsel. Should future proceedings demonstrate the need
for counsel, the matter may be reconsidered, either sua
sponte or upon a properly filed motion.
IT IS HEREBY ORDERED that Plaintiffs
“motion to deny defendants' denial ...