Stovall v. Sikes et al

Filing 26

ORDER denying 3 Motion to Appoint Counsel ; denying 14 Motion for Entry of Default; denying 15 Motion for TRO; denying 15 Motion for Preliminary Injunction; granting 20 Motion to Supplement Complaint ; denying as moot 25 Motion for Leave to File Discovery. Signed by Magistrate Judge G. R. Smith on 2/28/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DWAYNE STOVALL,
)

Plaintiff,
)

Case No. CV412-204

I,,

LIBERTY COUNTY SHERIFF
STEVE SIKES and LIBERTY
COUNTY JAIL ADMINISTRATOR
DOUGLAS FRANKS,
Defendants.

Before the Court are several motions filed by plaintiff Dwayne
Stovall in this 42 U.S.C. § 1983 civil rights case. First, he seeks
appointment of counsel. (Doc. 3.) As a general rule, there is no
entitlement to appointed counsel in a civil rights action brought
pursuant to 42 U.S.C. § 1983.1
1

Fowler v. Jones, 899 F.2d 1088, 1096

"The preeminent generalization that emerges from this Court's precedents on
an indigent's right to appointed counsel is that such a right has been recognized to
exist only where the litigant may lose his physical liberty if he loses the litigation."
Lassiter v. Dept of Soc. Serv's, 452 U.S. 18, 25 (1981). An action filed under 42
U.S.C. § 1983 is civil in nature and does not affect a plaintiffs physical liberty, so the
stringent standards of appointment and effective assistance of counsel mandated by
the Sixth Amendment and Federal Rule of Criminal Procedure 44 do not apply in
civil proceedings. See United States v. Rogers, 534 F.2d 1134 (5th Cir. 1976). Thus,
the appointment of counsel is required only where necessary to insure "fundamental
fairness" in accordance with the due process clause of the Fourteenth Amendment.
Lassiter, 452 U.S. at 26.

(11th Cir. 1990); Wahl v. McIver, 773 F.2d 1169, 1172 (11th Cir. 1986);

Hardwick v. Ault, 517 F.2d 295 2 298 (5th Cir. 1979); see also Thomas v.
Estelle, 603 F.2d 488, 489 (5th Cir. 1979.). Court-appointed counsel in
civil cases is warranted only in "exceptional cases."

Steele v. Shah, 87

F.3d 1266, 1271 (11th Cir. 1996); Kilgo v. Ricks, 983 F.2d 189, 193 (11th
Cir. 1993); Fowler, 899 F.2d at 1096; see Bass v. Perrin, 170 F.3d 1312,
1320 (11th Cir. 1999).
In considering whether exceptional circumstances exist, the Court
should consider (1) the type and complexity of the case; (2) whether the
indigent is capable of presenting his case; (3) whether the indigent is in a
position to investigate the case adequately; and (4) whether the evidence
will consist largely of conflicting testimony as to require skill in
presenting the evidence and in cross-examination. Ulmer v. Chancellor,
691 F.2d 209, 213 (5th Cir. 1982). However, the "key is whether the pro

se litigant needs help in presenting the essential merits of his or her
position to the court. Where the facts and issues are simple, he or she
usually will not need such help." Kilgo, 983 F.2d at 193. Here, Stovall
has had no difficulty in explaining the facts of his case, and while his
imprisonment certainly makes litigation more difficult, it is not an
2

exceptional circumstance requiring the appointment of counsel.
Otherwise, courts would be required to appoint counsel in every prisoner
case that survives initial screening. Stovall's motion for appointment of
counsel (doc. 3) is therefore DENIED.
Stovall also moves for the entry of a default judgment against
defendants. (Doc. 14.) Apparently, he is under the misimpression that
the defendants failed to respond in a timely fashion. The defendants,
however, waived service of summons and thus were permitted 60 days
from December 15, 2012 to file their answer or other responsive
pleading. (Docs. 13 & 18.) The answer was received on February 8,
2013, but it was not due until February 13, 2013. (Doc. 21); Fed. R. Civ.
P. 12(1)(A)(ii). Since defendants timely responded, plaintiffs motion for
a default judgment (doe. 14) is DENIED.
Next, Stovall contends that he should be awarded a temporary
restraining order and preliminary injunction against defendants so that
he may consult with his attorney in private. (Doe. 15.) Defendants insist
that there is no need for such injunctive relief, because they will allow
him to meet in private if he requests it. (Doe. 19.) Stovall has not shown

IF

that he is entitled to either a TRO or a preliminary injunction.' Given
defendants' assurances, the Court directs Stovall to request privacy
during his forthcoming meetings with counsel. If it is not provided, the
Court will revisit this issue, but he must support all factual assertions
with a sworn affidavit or declaration under 28 U.S.C. § 1746(1). Stovall's
motion for injunctive relief (doc. 15) is DENIED.
Stovall next seeks permission "to file a supplemental complaint"
adding additional instances of the same violation the Court found
survived initial screening. (Doe. 20.) Defendants do not oppose his
2

A TRO issues under Fed. R. Civ. P. 65(b) when "(A) specific facts in an
affidavit or verified complaint clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse party can be heard in
opposition; and (B) the movants attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required." Fed. R. Civ. P. 65(b)(1). In
other words, it is generally used prior to service for a short time period (14 days in
most instances). Since defendants have already been served and have responded to
Stovall's request, he likely meant to obtain a preliminary injunction rather than a
TRO.
A district court may grant a Fed. R. Civ. P. 65(a) preliminary injunction "only
if the moving party shows that: (1) it has a substantial likelihood of success on the
merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the
threatened injury to the movant outweighs whatever damage the proposed injunction
may cause the opposing party; and (4) if issued, the injunction would not be adverse
to the public interest." ACLU v. Miami-Dade Sch. Bd., 557 F.3d 1177, 1198 (11th
Cir. 2009) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)).
Since it is "an extraordinary and drastic remedy," a preliminary injunction should
not "be granted unless the movant clearly establishes the burden of persuasion as to
the four requisites." Id. at 1198 (quoting All Care Nursing Seru., Inc. v. Bethesda
Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)).

motion. (Doe. 24.) Thus, the motion is GRANTED.
Finally, Stovall seeks "leave to file discovery."

(Doe. 25.)

Specifically, he requests production of documents pursuant to Fed. R.
Civ. P. 34. (Id.) Discovery is meant to be a self-executing, extrajudicial
exercise requiring, at most, infrequent court intervention. See Powell v.

Scott, No. CV412-004, doe. 20 (S.D. Ga. May 2, 2012). Hence, Stovall
need not pester the Court with motions for discovery. Instead, he should
forward his requests for production directly to defendants. He is advised
to familiarize himself with the discovery provisions set forth in the
Federal Rules of Civil Procedure. See generally, Fed. R. Civ. P. 26, et seq.
Stovall's motion for "leave to file discovery" (doe. 25) is thus DENIED as
moot.
SO ORDERED this p1day of February, 2013.
MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA