Cole v. United States Marshals Service

U.S. District Court, District of Minnesota November 21, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

VICTOR DEMETRIUS COLE, Case No. 24-CV-2148 (PAM/JFD)

Plaintiff,

v. ORDER and REPORT AND
RECOMMENDATION
UNITED STATES MARSHALS
SERVICE,

Defendant.

This matter is before the Court on Plaintiff Victor Demetrius Cole’s Motion for
Default Summary Judgment (Dkt. No. 16), Mr. Cole’s Motion for Appointment of Counsel
(Dkt. No. 19), and Defendant United States Marshals Service’s (“USMS”) Motion for
Extension of Time to Answer Complaint (Dkt. No. 20). For the reasons set forth below,
the Court grants in part and denies in part the USMS’s Motion for Extension of Time,
denies Mr. Cole’s Motion for Appointment of Counsel, and recommends that Mr. Cole’s
Motion for Default Summary Judgment be denied without prejudice. The USMS shall file
an answer or other response to Mr. Cole’s Complaint within 14 days.
I. Background
Mr. Cole initiated this action by filing a Complaint on June 4, 2024. Mr. Cole’s
application to proceed in forma pauperis was granted, which entitled him to service of
process by the USMS. The USMS was served via the U.S. Attorney’s Office (“USAO”)
on August 12, 2024. By rule, an agency of the United States must file an answer within 60
days of service on the U.S. Attorney. Fed. R. Civ. P. 12(a)(2). The USMS accordingly
should have filed its answer by October 11, 2024, but the USMS did not file a response.

Therefore, on October 28, 2024, the Court issued an order requiring the USMS to file a
stipulation or a motion for an extension of time to answer or otherwise respond to the
Complaint. Meanwhile, Mr. Cole filed a “Motion for Default Summary Judgment” based
on the USMS’s failure to timely answer. (Dkt. No. 16.) Mr. Cole also filed a motion for
the appointment of counsel because “he believes that his limited knowledge of the legal
system . . . would slow down the legal process in this case.” (Dkt. No. 19.)

The USMS filed a motion for an extension of time to respond to the Complaint on
November 12, 2024 (Dkt. No. 20). The USMS explained that an inadvertent case-
processing error by the USAO caused the case not to be opened internally or assigned to
an assistant U.S. Attorney. The USMS asks for an extension of time to January 10, 2025,
to respond to Plaintiff’s Complaint.

II. Discussion
Federal Rule of Civil Procedure 6(b)(1)(B) permits a court to extend a deadline after
its expiration “if the party failed to act because of excusable neglect.” Excusable neglect is
a flexible concept “that empowers courts to accept, where appropriate, late filings caused
by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond

the party’s control.” Chorosevic v. MetLife Choices,

600 F.3d 934, 946

 (8th Cir. 2010) 
(cleaned up). The Court may consider any relevant circumstance, but four factors are 
particularly important: (1) the possibility of prejudice to the other party, (2) the length of 
the delay, (3) the reasons for the delay, and (4) whether the moving party acted in good 
faith. Sugarbaker v. SSM Health Care,

187 F.3d 853, 856

(8th Cir. 1999).

Of primary concern to the Court is the potential of prejudice to Mr. Cole. Taking
the allegations in Mr. Cole’s Complaint as true, the USMS is withholding approval for
lymphoma surgery that his medical provider has ordered, and Mr. Cole is experiencing
great pain and discomfort. Although Mr. Cole is seeking only monetary relief in this
lawsuit—not an order concerning the surgery—this strikes the Court as a situation in which
prejudice increases as time passes.

Second, the length of the delay is unreasonable. The amount of time between the
date the answer was due originally (October 11, 2024) and the requested extended deadline
(January 10, 2025) is three months. Two additional months passed between August 12 and
October 11, 2024, effectively giving the United States five months to answer or otherwise
respond after service in a case that is not complicated.

The third factor is neutral. Although the delay was due to a rare and inadvertent
processing error by the USAO, the failure to open the case internally is a significant error.
Finally, the fourth factor weighs in favor of granting an extension: there is no reason to
believe that the USMS did not act in good faith.
Balancing the four factors, the Court finds that the USMS failed to answer due to

excusable neglect but that the requested extension of time is too long. The USMS must file
an answer or other response to the Complaint within 14 days.
Granting the extension means that the grounds underlying Mr. Cole’s Motion for
Default Summary Judgment no longer exist. The USMS is not in default for failing to

answer. The Court will therefore recommend that this motion be denied.
Lastly, the Court denies Mr. Cole’s Motion to Appoint Counsel. There is no
constitutional or statutory right to appointed counsel in civil litigation. Patterson v. Kelley,

902 F.3d 845, 850

 (8th Cir. 2018). In deciding whether to appoint counsel, the Court should 
consider  “the  factual  complexity  of  the  issues,  the  ability  of  the  indigent  person  to 
investigate the facts, the existence of conflicting testimony, the ability of the indigent 

person to present the claims, and the complexity of the legal arguments.”

Id.

 (quoting 
Phillips v. Jasper Cty. Jail,

437 F.3d 791, 794

(8th Cir. 2006)). Here, the Court finds that
this action is not particularly complex, either factually or legally. Furthermore, Mr. Cole
has not shown that he is not able to investigate the relevant facts, and he seems quite able
to express his positions and allegations. At this stage of the case, the existence of

conflicting testimony is not known. Therefore, the Court will not appoint counsel.

Accordingly, IT IS HEREBY ORDERED THAT:
1. Mr. Cole’s Motion for Appointment of Counsel (Dkt. No. 19) is DENIED; and
2. The USMS’s Motion for Extension of Time to Answer Complaint (Dkt. No. 20)

is GRANTED IN PART and DENIED IN PART, and the USMS shall file a
response to Mr. Cole’s Complaint within 14 days.
Further, IT IS HEREBY RECOMMENDED THAT Mr. Cole’s Motion for
Default Summary Judgment (Dkt. No. 16) be DENIED.

s/ John F. Docherty
Dated: November 21, 2024
JOHN F. DOCHERTY
United States Magistrate Judge

NOTICE

Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and therefore is not appealable directly to the Eighth Circuit Court of
Appeals. Pursuant to D. Minn. LR 72.2(b)(1), a party may file and serve specific written
objections to this Report and Recommendation within fourteen days. A party may
respond to objections within fourteen days. All objections and responses must comply
with the word or line limits set forth in LR 72.2(c).