Evans v. Griess et al

Filing 46

ORDER DENYING 24 Plaintiff's Motion to Appoint Counsel, DENYING 35 Plaintiff's Motion for Summary Judgment, and DENYING 37 Plaintiff's Second Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 2/2/2015. Copy mailed to pro se plaintiff, via US Mail, to 717 Court Street, Jacksonville, NC, 28540. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:13-CV-128-BO

GEORGE REYNOLD EVANS,
Plaintiff,
v.

OFFICER JASION GRIESS, et al.,
Defendants.

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ORDER

This matter is before the Court on plaintiff George Evans's motion for appointment of
counsel [DE 24] and motions for summary judgment [DE 35, 37]. For the reasons stated below,
plaintiffs motions are DENIED.
BACKGROUND
Plaintiff filed his complaint and motion for leave to proceed in forma pauperis on June
17,2013, seeking compensatory and punitive damages under 42 U.S.C. § 1983 and§ 1985 based
on his alleged wrongful arrest and vehicle searches by two Jacksonville police officers. [DE 1].
While the Court was conducting a frivolity review, plaintiff filed his first motion for appointment
of counsel. [DE 7]. In October 2013, the Court dismissed some of the claims as frivolous and,
finding no exceptional circumstance that would justify appointing counsel, denied plaintiffs
motion for appointment of counsel. [DE 8]. Defendants filed their answer in February 2014, and
the Court entered a scheduling order which set a discovery deadline of June 1, 2015, and a
motions deadline of July 1, 2015. [DE 40]. Prior to entry of the scheduling order, plaintiff filed
two motions for summary judgment [DE 35, 37] and another motion for appointment of counsel
[DE 24]. In response, defendants filed a response asking the Court to defer consideration or deny

plaintiffs summary judgment motions pursuant to Federal Rule of Civil Procedure 56(d). [DE
41].
DISCUSSION
"[I]t is well settled that in civil actions the appointment of counsel should be allowed
only in exceptional cases .... " Cookv. Bounds, 518 F.2d 779,780 (4th Cir. 1975); Whisenant v.
Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallardv. United
States Dist. Court/or the S. Dist. of/a., 490 U.S. 296,300 n.3 (1989). The existence of
exceptional circumstances depends upon "the type and complexity of the case, and the abilities
ofthe individuals bringing it." Whisenant, 739 F.2d at 163 (quotation and citation omitted).
Further, as a threshold matter, it is not proper to appoint counsel unless the plaintiffs case
appears likely to be one of substance. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
The Court does not believe that plaintiffs ailing health makes this an exceptional case,
particularly given that plaintiff has filed motions subsequent to his request for counsel because of
his alleged inability to represent himself. As such, it is proper to deny plaintiffs motion for
appointment of counsel.
Summary judgment should only be granted "after adequate time for discovery," Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A Rule 56(d) motion must be granted "where the
nonmoving party has not had the opportunity to discovery information that is essential to his
opposition." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,250 n.5 (1986). The Fourth Circuit
has held that such motions "should be liberally granted" in order to protect non-moving parties
from premature summary judgment motions. Greater Baltimore Ctr. for Pregnancy Concerns,
Inc .. v. Mayor and City Council of Baltimore, 721 F.3d 264,281 (4th Cir. 2013) (quotation and
citation omitted).

2

Plaintiffs motions for summary judgment both were filed prior to the entry of the
scheduling order. Defendants have not deposed plaintiff or engaged in discovery, and plaintiffs
second motion states that supporting documents and testimony are not yet available. [DE 37].
Accordingly, it is proper to deny plaintiffs motions for summary judgment.
CONCLUSION
For the foregoing reasons, plaintiffs motion for appointment of counsel [DE 24] and
both motions for summary judgment [DE 35, 37] are DENIED.
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SO ORDERED, this _l:_ day of Jitt

ry, 20(.

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UNITED STATES DISTRICT JUDGE

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