with free legal counsel, despite the fact that this is a private civil action and not a criminal defense situation under the Criminal Justice Act where counsel for indigents is authorized." Def's Mot. in Opp. to Pl's Am. Compl. at n.1.
The Court is specifically authorized by statute to request an attorney to represent any person unable to afford counsel in a case, civil or criminal, under 28 U.S.C. § 1915(e)(1). See also Local Rule 702 (Attorneys . . . shall be required to assist or represent the needy in civil matters before this Court whenever requested by the Court and, if necessary, without compensation . . . ."). Based on the record, the Court found that the appointment of counsel was warranted in this case. Defendant is advised that the Court does not take allegations of bias lightly. For that reason, defendant is strongly counseled not to make unfounded accusations of "preferential treatment" by the Court.
Turning to the defendant's motion, defendant asserts that the First Amended Complaint contains causes of action and factual allegations that do not appear in the original Complaint. Thus, defendant requests that portions of the First Amended Complaint be stricken. There is no basis for this request.
Leave to amend a pleading "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205, 1208-09 (D.C. Cir. 1996). Plaintiff's original Complaint was filed pro se. The Court determined that it was in the interest of justice to permit the original Complaint to be amended with the aid of counsel. The additional causes of action in the First Amended Complaint arise "out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original [complaint]." See Fed. R. Civ. P. 15(c). The defendant has not shown any prejudice by virtue of the filing of the First Amended Complaint. See Firestone, 76 F.3d at 1208 (it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as undue delay, bad faith, dilatory motives, or futility). Accordingly, defendant's motion will be denied.
II. DEFENDANT'S MOTION OBJECTING TO JURISDICTION, ASSERTING THE STATUTE OF LIMITATIONS, AND TO DISMISS WILL BE DENIED.
A. THE COURT PREVIOUSLY DENIED DEFENDANT'S MOTION TO DISMISS.
On January 29, 1997, during a scheduling conference before the Court, defendant moved orally to dismiss this action for lack of jurisdiction. The Court denied defendant's motion at that time.
See Proctor v. Morrissey, 1997 U.S. Dist. LEXIS 19749, No. 96-2627 (D.D.C. Jan. 31, 1997) (order). The instant motion sets forth no basis upon which the Court should reconsider its previous denial.
B. DEFENDANT FAILED TO FILE HIS MOTION BY THE DATE ORDERED BY THE COURT.
On January 29, 1997, Morrissey requested and was granted an extension of time in which to respond to the First Amended Complaint. The Court subsequently ordered defendant to file any additional Rule 12 motions on or before February 13, 1997. Defendant failed to file any additional Rule 12 motions by that date. For this reason as well, defendant's present Rule 12 motion will be denied.
C. THIS COURT HAS PERSONAL JURISDICTION OVER DEFENDANT BECAUSE HE WAS A RESIDENT OF THE DISTRICT OF COLUMBIA AT THE TIME THE ACTION WAS INITIATED AND WAS PROPERLY SERVED WITH PROCESS IN THE DISTRICT OF COLUMBIA.
The Fourth Circuit transferred this action to this Court because, by defendant's own admission, he was a resident of the District of Columbia when this action was filed and when he was served here with process.
Proctor, 1996 WL 555302, at *4. The Fourth Circuit found that this district was one in which this action "could have been brought" to obtain personal jurisdiction. See D.C. Code Ann. § 13-422 (1997) (District of Columbia court may exercise personal jurisdiction over domiciliary for any claim for relief). Because defendant was a domiciliary of the District of Columbia at the time this action was initiated, and was served with process here, this Court has personal jurisdiction over him. Accordingly, defendant's motion will be denied.
D. DEFENDANT'S CLAIM IS NOT BARRED BY THE STATUTE OF LIMITATIONS.
The question whether an action is barred by the statute of limitations is procedural and is governed by the statute of limitations of the forum. Steorts v. American Airlines, Inc., 207 U.S. App. D.C. 369, 647 F.2d 194, 197 (D.C. Cir. 1981). The District of Columbia statute of limitations applies in this action. Accord Proctor, 1996 WL 555302, at *5 (District of Columbia law, not the law of Virginia, applies to this action after transfer).
Under District of Columbia law, the statute of limitations period is tolled during an individual's incarceration. D.C. Code § 12-302(a)(3); Brown v. Jonz, 572 A.2d 455, 456-57 (D.C. 1990) (limitations period for legal malpractice tolled during plaintiff's incarceration). The limitations period on plaintiff's claims was tolled pursuant to D.C.Code § 12-302(a)(3) due to his imprisonment at the time his cause of action accrued. See Brown, 572 A.2d at 456-57. For this reason, the defendant's motion will be denied.
Based on the foregoing, the defendant's motions will be denied. The Court will issue an Order of even date herewith, consistent with the foregoing Memorandum Opinion.
September 29, 1997
UNITED STATES DISTRICT JUDGE
For the reasons set forth in the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 29 day of September, 1997,
ORDERED that the defendant's Motion in Opposition to Plaintiff's Amended Complaint will be, and hereby is, DENIED; and it is
FURTHER ORDERED that the defendant's Motion Objecting to Jurisdiction, Asserting the Statute of Limitations, and to Dismiss will be, and hereby is, DENIED; and it is
FURTHER ORDERED that the Court's scheduling order dated July 8, 1997 remains in full force and effect.
September 29, 1997
UNITED STATES DISTRICT JUDGE