Dean Kinder v. James Rubenstein

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cv-00050-FPS-JES Copies to all parties and the district court/agency. [999801191]. Mailed to: Dean Kinder. [16-6102]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6102

DEAN JACKSON KINDER,
Plaintiff - Appellant,
v.
JAMES RUBENSTEIN, Commissioner; PAT MIRANDY, Warden; DANIEL
KIMBLE, Unit Manager,
Defendants - Appellees.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge. (5:15-cv-00050-FPS-JES)

Submitted:

April 19, 2016

Decided:

April 22, 2016

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dean Jackson Kinder, Appellant Pro Se.
William E. Murray,
ANSPACH MEEKS ELLENBERGER LLP, Charleston, West Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dean Kinder appeals the district court’s judgment adopting
the magistrate judge’s recommendation to dismiss his 42 U.S.C.
§ 1983 (2012) action for failure to state a claim.
we

confine

brief.

our

review

to

the

issues

See 4th Cir. R. 34(b).

raised

in

On appeal,
the

informal

For the reasons that follow, we

affirm.
Kinder
declining

first

to

argues

sanction

that

the

Defendants

district

for

court

“perjury”

erred

in

committed

by

Defendants’ counsel in a memorandum in support of Defendants’
motion

to

dismiss.

The

apparent

misrepresentation

by

Defendants’ counsel was regrettable and potentially warranting
of admonishment if made in bad faith.

See Fed. R. Civ. P.

11(b)(2), (3), (c); In re Bees, 562 F.3d 284, 288 (4th Cir.
2009) (distinguishing between counsel’s inadvertent mistake and
statement

in

sanctions

was

bad

faith).

procedurally

However,
improper,

Kinder’s
see

Fed.

request
R.

Civ.

for
P.

11(c)(2), and the statement caused Kinder no prejudice, given
that

the

magistrate

corrected it.

judge

independently

investigated

and

Under the circumstances presented, we find no

abuse of discretion in the court’s decision not to sua sponte
issue a show cause order to address this isolated statement.
See Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 151 (4th

2

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Cir. 2002) (discussing sua sponte sanctions under Fed. R. Civ.
P. 11(c)(3)); Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277
(4th Cir. 2006) (standard of review).
Next,

Kinder

challenges

the

district

court’s

repeated

denials of his motions for appointed counsel and discovery.
conclude

the

court

did

not

abuse

its

discretion

in

We

denying

Kinder discovery during the pleading stage of the proceedings or
in

declining

to

appoint

counsel,

as

Kinder’s

articulate

pleadings demonstrated his ability to present his claims.

See

Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160,
172 (4th Cir.) (standard of review for discovery matters), cert.
denied, 135 S. Ct. 437 (2014); Miller v. Simmons, 814 F.2d 962,
966 (4th Cir. 1987) (standard of review for denial of counsel);
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (addressing
factors

relevant

abrogated

on

490 U.S.

296

district

court’s

to

other

appointment
grounds

(1989).

by

counsel

Mallard

Finally,

factual

of

while

recitation

v.

in

civil

U.S.

Kinder

regarding

Dist.

cases),
Court,

challenges
grievances

the
he

filed, we find no reversible error in its summary of Kinder’s
complaint and attached grievance forms.
Accordingly, we affirm the district court’s judgment.
dispense

with

oral

argument

because

3

the

facts

and

We

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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