Carmichael v. Dunn et al
Order DIRECTING Defendants to provide the current addresses of the above listed persons, (and for those persons who are no longer employed by ADOC to provide their current addresses only to the Court and under seal), so the Court can send the notice of lawsuit and request for waiver of service of summons to these Defendants or obtain service of process on them on or before 10/01/2018. 88 MOTION to Appoint Counsel and 89 MOTION to Strike filed by Leon Carmichael, Jr. are DENIED as set out herein. Signed by Magistrate Judge P. Bradley Murray on 09/13/2018. (srd)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
LEON CARMICHAEL, #165648,
JEFFERSON DUNN, et al.,
CIVIL ACTION 17-0087-TM-MU
This action is before the Court for review of Defendants who have been served in
this action. Considering Defendants named in the complaint, Defendants who were CERT
Team members, and Defendants who appeared, requested extensions of time, and filed
their answers and special reports, the Court finds that the following persons were named
as Defendants and have not been served or appeared in this action:
Officer Michael Harrison
Officer Mallorie Mixon
Sgt. Terry Edwards
Officer Jesse Stanford
The parties are advised that the notice of lawsuit and request for waiver of service
of summons sent to Defendants Terry Edwards (Doc. 53) and to Michael Harrison (Doc.
61) have been returned to the Court with a postal notation, “Return to Sender Not
Deliverable as Addressed Unable to Forward” and “Return to Sender Unable to Forward,”
respectively. Inasmuch as the above listed Defendants have not appeared in this action
or have not been served, and with defense counsel implying that counsel is not
representing an unserved Defendant by excluding exhibits from the special report that
relate to the unserved Defendants (Doc. 84 at 5 n.3), Defendants are ORDERED on or
before October 1, 2018 to provide the current addresses of the above listed persons,
(and for those persons who are no longer employed by ADOC to provide their current
addresses only to the Court and under seal), so the Court can send the notice of lawsuit
and request for waiver of service of summons to these Defendants or obtain service of
process on them.
Plaintiff is advised that service of process on Nurses 1, 2, 3, 4, and on the Cubicle
Officer is not being attempted due to insufficient information in the complaint identifying
them. (Doc. 1 at 20, ¶¶ 10, 13). Cf. Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992)
(finding that specific information allowed for service to be attempted on the unnamed
defendant - chief deputy of jail – who was the head of the jail).
Plaintiff Carmichael filed a Motion for Appointment of Counsel because he finds
that his action is complex due to there being numerous Defendants and that he has
needed the assistance of law clerks at Donaldson Correctional Facility because he is
unskilled in the law and legal procedures and will need assistance in striking a jury.
(Doc. 88). At this time all Defendants have not been served and thus have not filed
their Answer and Special Report and, as a consequence, the undersigned finds that
Plaintiff’s Motion is premature and therefore is DENIED.
In an action such as this, the Court may exercise its discretion by requesting the
assistance of counsel under 28 U.S.C. § 1915(d). Mallard v. U.S. Dist. Court for the
Southern Dist. of Iowa, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989); Killian v.
Holt, 166 F.3d 1156, 1157 (11th Cir. 1999). Such requests are not mandatory except in
"exceptional circumstances" where the complexity of the case or the competence of a
plaintiff makes pro se prosecution of the claim fundamentally unfair. Steele v. Shah, 87
F.3d 1266, 1271 (11th Cir. 1996); Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993);
Poole v. Lambert, 819 F.2d 1025 (11th Cir. 1987); Wahl v. McIver, 773 F.2d 1169, 1174
(11th Cir. 1985).
Once the undersigned has had the opportunity to review all Defendants’ answers
and special reports filed in this action, Plaintiff may renew his motion for appointment of
counsel, if he elects to do so. At this time, this action does not appear complex and
Plaintiff appears capable of presenting his case. For these additional reasons, Plaintiff’s
motion is DENIED.
Plaintiff filed a “Motion to Strike Defendants Supplemental Answer in Alleging that
the Defendants Named in This Complaint Are Barred by a Qualified Immunity Defense.”
(Doc. 89). Plaintiff claims to have filed an amended complaint in which he stated that
he no longer wished to sue Defendants in their official capacity but wanted to sue them
in the individual capacity. (Id. at 1). The Court notes that in the Supplemental Answer,
certain Defendants assert that “they are immune from civil action under the shields of
Qualified Immunity and Eleventh Amendment Immunity.” (Doc. 83 at 1).
The Court has examined its docket but has not found an amendment to Plaintiff’s
complaint. To address Plaintiff’s concern, he is advised that to determine the capacity
in which a defendant is sued, the Court “look[s] at the complaint and the course of
proceedings.” Colvin v. McDougall, 62 F.3d 1316, 1317 (11th Cir. 1995) (citing
Kentucky v. Graham, 473 U.S. 159, 167–68 n.14 (1985)). In an individual capacity
action, the qualified immunity defense is available to a defendant who is a federal or
state official, but qualified immunity is not an available defense in an official capacity
action. Kentucky v. Graham, 473 U.S. 159, 166-68 & n.14, 105 S.Ct. 3099, 3105-06 &
n.14, 87 L.Ed.2d 114 (1985) (discussing available defenses and pleading of different
types of capacity). Thus, Plaintiff’s “Motion to Strike Defendants Supplemental Answer
in Alleging that the Defendants Named in This Complaint Are Barred by a Qualified
Immunity Defense” is DENIED.
DONE this 13th day of September, 2018.
/s/ P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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