Evans v. Griess et al

Filing 8

ORDER ADOPTING 5 Memorandum and Recommendations, and DENYING 7 Plaintiff's Motion to Appoint Counsel and Motion for Extension of Time to File Objections. Plaintiff's claims against Lt. Dorn, Richard Woodruff, Sammy Phillips, the Ci ty of Jacksonville, and the City Council are DISMISSED. Plaintiff's official capacity claims against Officer Griess, Officer Funcke, Officer Ehrler, and Police Chief Yaniero are DISMISSED. Plaintiff's Fourth Amendment false arrest claims against Officer Ehrler, Officer Funcke, and Police Chief Yaniero are DISMISSED. Plaintiff's Fourteenth Amendment claims are DISMISSED. Plaintiff's Section 1985 conspiracy claims are DISMISSED. The remaining claims may proceed in their entirety. Signed by US District Judge Terrence W. Boyle on 10/22/2013. Copy mailed to pro se plaintiff via US Mail. (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 JASON GRIESS, ET AL.,
Defendants.

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ORDER

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This matter is before the Court on the Memorandum and Recommendation ("M&R") of
United States Magistrate Judge Robert B. Jones, Jr. [DE 5] and plaintiffs motion for an
extension of time and appointment of counsel [DE 7]. The Court ADOPTS the M&R and
DENIES plaintiffs motion. Plaintiff's claims are DISMISSED IN PART.

BACKGROUND
Plaintiff has filed a complaint seeking compensatory and punitive damages under 42
U.S.C. § 1983 and§ 1985, based on his alleged wrongful arrest and two wrongful searches ofhis
vehicle by two Jacksonville police officers. According to the complaint, Officer Griess stopped
plaintiff while driving his vehicle, searched the vehicle, and subsequently arrested plaintiff for
felony possession of crack cocaine and drug paraphernalia on March 9, 2013. Two days later on
March 11, 2013, plaintiff was again pulled over while driving his vehicle, this time by Officer
Ehrler. Officer Ehrler conducted a dog search and then a full search of plaintiff's vehicle based
on the dog's drug detection. Nothing was found. Plaintiff filed two complaints with the police
department regarding each alleged incident claiming racial profiling by the officers and he
claims that neither complaint was fully investigated. Plaintiff subsequently brought this action

seeking compensatory damages of $5 million and punitive damages of $500 million for
violations of his Fourth Amendment rights against unlawful search and seizure and Fourteenth
Amendment equal protection guarantees.
Judge Gates filed his M&R on September 17, 2013. Plaintiff did not object to it and
mailed his request for additional time to object and for appointment of counsel on October 7,
2013, three days after the deadline to object.
DISCUSSION
The Court adopts the M&R because plaintiff has made no objections to it and because the M&R
is not clearly erroneous or contrary to law. 28 U.S.C. § 636 (b)(l)(B). A district court is only
required to review an M&R de novo if the plaintiff specifically objects to it or in cases of plain
error. ld.; Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The magistrate has not committed plain
error in this instance. Therefore, the Court adopts the Magistrate Judge's recommendations and
dismisses plaintiffs complaint in part. Although plaintiff has filed a request for additional time,
he has not done so in a timely manner. His request for additional time was mailed after the
deadline to file any objections to the M&R. This Court denies his request for additional time
because it was untimely filed.
There is no constitutional or statutory right to appointment of counsel in a civil case. See

lvey v. Board of Regents, 673 F.2d 266, 269 (9th Cir. 1982); McKeever v. Israel, 689 F.2d 1315,
1318 (7th Cir. 1982). "Although 28 U.S.C. § 1915(e)(l) allows courts to "request" that an
attorney represent a plaintiff, there is, strictly speaking, no ability or funds to "appoint" counsel
in the traditional sense. Therefore, requesting that an attorney provide services free of charge will
be the exception rather than the rule, although there are no presumptions for or against the
recruitment of counsel." Almond v. Wisconsin, 2008 U.S. Cist. LEXIS 53315 at *1-2 (E.D.

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Wise. July 11, 2008) (citing Pruitt v. Mote, 503 F.3d 647, 656 (7th Cir. 2007)). The appointment
of counsel under §1915(e) is required only when "exceptional circumstances" are present.
Terrellv. Brewer, 935 F.2d 1015,1017 (9thCir. 1991).

Here plaintiff does not indicate that he has attempted to obtain representation on his own,
and although he alleges that he is mentally unable to prosecute his case, his correspondence with
the Court to date has not suggested any incompetence. The Court does not find any exceptional
circumstances in this case. Accordingly the Court denies plaintiffs request for appointed counsel
at this time, although the Court may revisit this decision if different facts, incompetencies, or
complexities arise.
CONCLUSION

For the foregoing reasons, plaintiffs motions for an extension of time and for appointed
counsel are DENIED. The Court ADOPTS the Magistrate Judge's recommendations [DE 5].
Therefore, plaintiffs claims against Lieutenant Dom, Richard Woodruff, Sammy Phillips, the
City of Jacksonville, and the City Council, plaintiffs official-capacity claims against Officer
Griess, Officer Funcke, Officer Ehrler, and Police Chief Yaniero, plaintiffs Fourth Amendment
wrongful search claims against Officer Funcke and Police Chief Yaniero, plaintiffs Fourth
Amendment false arrest claims against Officer Ehrler, Officer Funcke, and Police Chief Yaniero1
plaintiffs Fourteenth Amendment claims, and plaintiffs § 1985 conspiracy claim are
DISMISSED. The remaining claims may proceed in their entirety.

SO ORDERED,

this~ day of October, 2013.

~~44Mtv~~
TRRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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