Rocha v. Gilbert et al

Filing 31

ORDER: Plaintiff's motion for a court-appointed attorney 18 is DENIED, plaintiff's motion to amend 22 25 is GRANTED in part and DENIED in part, and plaintiff's motion to strike 28 is DENIED. Dr. Tobi Gilbert and Dr. Ash Mikha il are DISMISSED as defendants in this action. The amended complaint (as modified) is DEEMED filed today. Defendant Coastal Carolina Neuropsychiatric Crisis Services, P.A., may plead in response to the amended complaint. Signed by Chief Judge James C. Dever III on 6/20/2012. A copy of the order was mailed to the pro se plaintiff to the address of record. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DMSION

No. 7:12-CV-2-D

MAURICE ROCHA,
Plaintiff,

v.
DR. TOBI GILBERT,
DR. ASH MIKHAIL, and
COASTAL CAROLINA
NEUROPSYCHIATRIC,
Defendants.

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ORDER

Maurice Rocha ("Rocha" or ''plaintiff'') sued Dr. Tobi Gilbert, Dr. Ash Mikhail, and Coastal
Carolina Neuropsychiatric (collectively, "defendants") for employment discrimination. Rocha
contends that defendants violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§
12101-12213, and Title vn of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e-2000e-17, when
they terminated his employment. Rocha contends that he was fired due to his disability and his
national origin.
Rocha, who is appearing pro se, filed a motion for a court-appointed attorney [D.E. 18]. No
right to counsel exists in civil cases absent "exceptional circumstances." Whisenant v. YY!\m, 739
F.2d 160, 163 (4th Cir. 1984), abrogated in part on other grounds by Mallard v. U.S. Dist. ct. for S.
Dist. oflowil, 490 U.S. 296 (1989); see also Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975).
The existence of exceptional circumstances "hinges on [the] characteristics of the claim and the
litigant." Whisenant, 739 F.2d at 163. Rocha and his claims are not exceptional. The motion for
a court-appointed attorney is denied.

Rocha also seeks to amend his complaint [D.E. 22, 25]. Specifically, Rocha seeks to correct
the name of his employer to read Coastal Carolina Neuropsychiatric Crisis Services, P.A., to
reference the doctrine of respondeat superior as to Dr. Mikhail, and to expound upon his alleged
damages. Defendants do not oppose the amendment insofar as it corrects the name of Rocha's
former employer or expounds upon Rocha's alleged damages [D.E. 27]. As for the proposed
amendment concerning Dr. Mikhail, defendants contend that this amendment is futile because Rocha
failed to name Dr. Mikhail in his EEOC charge. Id.
The court grants Rocha's motion to amend insofar as it corrects the name ofCoastal Carolina
Neuropsychiatric Crisis Services, P.A., and discusses Rocha's alleged damages. The court denies
the motion to amend as to Dr. Mikhail, but not for the reason that defendants cite. Rather, the court
denies the motion to amend as to Dr. Mikhail because Dr. Mikhail is not Rocha's "employer" under
either the ADA or Title VII.

See,~,

Baird v. Rose, 192 F.3d 462,471-72 (4th Cir. 1999) (ADA);

Lissau v. S. Food Serv.. Inc., 159 F.3d 177, 180 (4th Cir. 1998) (Title VII). Accordingly, the court
denies the motion to amend to add the discussion concerning respondeat superior and Dr. Mikhail.

In fact, because Dr. Gilbert and Dr. Mikhail are not proper defendants under the ADA or Title VII,
the court dismisses the claims against them and dismisses them as defendants. See Baird, 192 F.3d
at 471-72; Lissa!!, 159 F.3d at 180.
Plaintiff's amended complaint [D.E. 25-1] is deemed filed effective today, but Dr. Gilbert
and Dr. Mikhail are no longer defendants. Coastal Carolina Neuropsychiatric Crisis Services, P.A.,
is the only remaining defendant and may plead in response to the amended complaint in accordance
with Federal Rule of Civil Procedure 15(a)(3).
Finally, plaintiff filed a motion to strike [D.E. 28]. The motion to strike is untimely and
baseless. Accordingly, the motion to strike is denied.

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In sum, plaintiff's motion for a court-appointed attorney [D.E. 18] is DENIED, plaintiff's
motion to amend [D.E. 22,25] is GRANTED in part and DENIED in part, and plaintiff's motion to
strike [D.E. 28] is DENIED. Dr. Tobi Gilbert and Dr. Ash Mikhail are DISMISSED as defendants
in this action. The amended complaint (as modified) is DEEMED filed today. Defendant Coastal
Carolina Neuropsychiatric Crisis Services, P.A., may plead in response to the amended complaint.
See Fed. R. Civ. P. 15(a)(3).
SO ORDERED. This ..1bday ofJune 2012.

J
SC.DEVERill
Chie United States District Judge

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