McCray v. Samani et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COLBY I. MCCRAY,
Plaintiff,
vs.
DAVID SAMANI, M.D.; JERRY LOVELACE,
Medical Director; TINA LENGER, Director of
Nursing; and CHELSEY TYBURSKI, Nurse
supervisor;
Defendants.
8:25CV615
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Appointment of Counsel,
Filing No. 8, and Motion for Leave to Amend, Filing No. 9. For the reasons that follow,
Plaintiff’s Motion for Appointment of Counsel will be denied and his Motion for Leave to
Amend shall be granted in accordance with this Memorandum and Order.
I. APPOINTMENT OF COUNSEL
First, Plaintiff requests the appointment of counsel due to his lack of legal
knowledge and his indigency. Filing No. 8. “There is no constitutional or statutory right
to appointed counsel in civil cases.” Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th
Cir. 2006). A district court “may request an attorney to represent” an indigent civil
litigant, 28 U.S.C. § 1915(e)(1), but it has a “good deal of discretion” in deciding whether
to do so, Chambers v. Pennycook, 641 F.3d 898, 909 (8th Cir. 2011). “Relevant criteria
for determining whether counsel should be requested include the factual and legal
complexity of the case, the plaintiff’s ability to investigate the facts and to present the
claims, and the presence or absence of conflicting testimony.” Recca v. Omaha Police
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Dep’t, 859 F. App'x 3, 4 (8th Cir. 2021) (citing Davis v. Scott, 94 F.3d 444, 447 (8th Cir.
1996)).
The Court has carefully reviewed the record and finds there is no need for the
appointment of counsel at this time as, at this early stage of litigation, Plaintiff appears
able to adequately present his claims and the Court has not yet conducted an initial
review of Plaintiff’s claims to determine whether this matter may proceed to service of
process. The Court is, however, aware that this situation may change as litigation
progresses. As the Eighth Circuit Court of Appeals instructs, the Court will “continue to
be alert to the possibility that, because of procedural complexities or other reasons, later
developments in the case may show either that counsel should be appointed, or that
strict procedural requirements should, in fairness, be relaxed to some degree.” Williams
v. Carter, 10 F.3d 563, 567 (8th Cir. 1993).
II. LEAVE TO AMEND
Next, Plaintiff requests leave to amend his complaint “to incorporate relevant
information such as Res ipsa loquitur doctrine to the claims of negligence, as well as
include medical exhibits pages 5 and 6 that show medical staff were trying to cover up
negligence of anchors or prior surgical repairs.” Filing No. 9. Plaintiff attached the
referenced “medical exhibits pages 5 and 6” to his motion. See Filing No. 9 at 2–3.
Rule 15 of the Federal Rules of Civil Procedure provides “[t]he court should freely
give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Therefore,
this Court may freely grant Plaintiff leave to amend his Complaint at this early stage of
the proceedings. However, Nebraska Civil Rule 15.1 provides that “[a] party who moves
for leave to amend a pleading (including a request to add parties) must file as an
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attachment to the motion an unsigned copy of the proposed amended pleading that
clearly identifies the proposed amendments.” NECivR 15.1(a). In pro se cases, the
Court may consider an amended pleading as supplemental to the original pleading.
NECivR 15.1(b).
While Plaintiff has failed to comply with the local rules of this Court as he did not
attach his proposed amended complaint to the Motion, this Court shall allow Plaintiff to
file an amended complaint within 30 days from the date of this Memorandum and Order.
Plaintiff must note an amended complaint will supersede, not supplement, the
previously filed complaint. However, Plaintiff may incorporate by reference any
previously filed exhibits attached to his Complaint, Filing No. 1, as well as the “medical
exhibits pages 5 and 6” attached to his Motion for Leave to Amend rather than re-filing
those exhibits. Plaintiff must include all of the claims he wishes to pursue against all of
the individuals that he wishes to proceed against in his amended complaint. Plaintiff
should be mindful to explain in his amended complaint what each defendant did to him,
when and where the defendant did it, and how the defendant’s actions harmed him.
Plaintiff is encouraged to use the form complaint enclosed with this order in amending
his complaint. If Plaintiff fails to file an amended complaint by the appointed deadline,
the Court will proceed with its initial review of Plaintiff’s initial Complaint, Filing No. 1,
and will consider the “medical exhibits pages 5 and 6,” Filing No. 9 at 2–3, as
supplemental to the Complaint.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff’s Motion for Appointment of Counsel, Filing No. 8, is denied
without prejudice to reassertion.
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2. Plaintiff’s Motion for Leave to Amend, Filing No. 9, is granted.
3. Plaintiff has through and until February 9, 2026, to file an amended
complaint in accordance with this order. If Plaintiff fails to file an amended complaint or
otherwise respond or seek an extension to do so prior to the expiration of the February
9, 2026, deadline, the Court shall perform an initial review of the claims set forth in
Plaintiff's initial Complaint, Filing No. 1, to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).
4. The Clerk's Office is directed to set a pro se case management deadline in
this case using the following text: February 9, 2026: Check for amended complaint.
5. The Clerk of the Court is directed to send to Plaintiff the Form Pro Se 14
(“Complaint for Violation of Civil Rights (Prisoner)”).
Dated this 8th day of January, 2026.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge
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