LINDSAY v. GLICK et al
Filing
66
MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 04/22/2016; that Plaintiff's Motion (Docket Entry 32 ) be GRANTED. Additionally, the Court finds that, unless justice requires other wise, no amended or supplemental pleadings will be allowed going forward. FURTHER ORDERED that Plaintiff's motion entitled "Motion for Access to Photocopying and Notary Services" (Docket Entry 26 ) and Plaintiff's motio n entitled "Plaintiff's Motion to Reconsider Appointment of Counsel (D.E. 3 ) and Memorandum of Law in Support" (Docket Entry 50 ) are DENIED. FURTHER ORDERED that Plaintiff's motions (Docket Entries 33 , 45 , 46 ) be DENIED as moot. FURTHER ORDERED that Defendant's Second Motion for Extension of Time to Complete Discovery (Docket Entry 53 ) is GRANTED. Defendants shall have up to and including May 18, 2016, to respond to P laintiff's Second Set of Interrogatories and Request for Admissions and Second Request for Production of Documents. FURTHER ORDERED that Defendants respond to Plaintiff's Motion for Subpoena (Docket Entry 48 ) by May 18, 2016. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THE,ODUS LINDS,A.Y, JR.,
Plaintiff,
v
WILLIAM GLICK, III, et al.,
Defendants
)
)
)
)
)
)
)
)
)
1:15CV596
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE TUDGE
This matter is before the Court upon Plaintiff Theodus Lindsay,Jt.'s and Defendants
IØilliam Glick,
III, Mr. Btandhotst,
Ms. Barringer, Cordelia McBride, Ebony Ratlif,f, Mr.
Hildreth, Mr. Huneycutt, Ms. Robinson, Mr. Lookabill, Ms. Btuton, Mr. Parsons, Mt.
Hargrave, Mr. Bradford, Macte Crider, Victor Locklear, and Monica Bond's several motions
including: Plaintiffs motion entitled "Motion
for
Access
to
Photocopying and Notary
Services" (Docket Entry 26),Plaint:ffs motion entitled "Motion to Âmend and Supplement
Complaints" (Docket Entry 32; see øl¡oDocket Entry 33), Plaintiffs motion entitled "Motion
to Enter Plaintiffs Q).E. 32) Cera[tcate of Âchievement for Ânger Management, Notth
Caroltna Department
of Public Safety Alcoholism Chemical Dependency Ptograms,
Certificate of Achievement Thinking for a Chanqe, as Exhibits A and Declaration of Theodus
Lindsay Jr., and Tyrone Bunch as Exhibits
B into Court Records" (Docket Entry
45),
Plaintiffs Motion entitled "Motion to enter Plaintiffs Exhibits Verified Complaint (D.E.
2)
into Court Record" Q)ocket Entty 46), Plaintiffs Motion for Subpoena (Docket Entry 48),
Plaintiffs Motion entitled "PlaintifPs Motion to Reconsider Appointment of Counsel (D.E.
1,
3) and Memorandum of Law in Suppott" (Docket Entty 50), and Defendants' Second Motion
for Extension of Time to Complete Discovery pocket Entry 53). These matters are ripe for
disposition.
I.
FACTUAL BACKGROUND
On July 22, 201.5, Plaintiff,
^
pro se prisoner, fìled a complaint asserting that
Defendants were deliberately indifferent to Plaintiffs medical needs by denying Plaintiff access
to mental health treatment and protective custody.
Plaintiff was imprisoned in June 2014. (Id. at
6.)
(See
generalþ Complaint,
DocketBntty
2.)
In ,{.ugust 2014, Plaintiff alleges that he
requested to participate in a mental health psychological rehabilitative treaffnent progtam for
his Post Traumatic Sttess Disorder ("PTSD") resulting from his expetience in the military
Qd.) Platntd:ff alleges that he was denied access to the program and was assigned to the "Road
Squad" for a work assignment. (Id.) Plaintiff states that on several occasions he requested to
be removed from the Road Squad assignment and to be admitted to the mental health
psychological rehabilitative treatment program. Qd. at 6-9.) On October 21,,201,4, Plaintiff
states that he was assaulted on the Road Squad
bus.
Qd. at
6.) Plaintiff
alleges that a prison
staff member failed to do anything about the altetcation. (Id.) Subsequently, Plaintiff was
assaulted agaín on Road Squad duty on Novembet 1,3,201,4. (Id. at1,0.) As a result
of this
second altercation, Plaintiff was moved to testrictive housing. (Id.) OnJuly 22,201.5, Plaintiff
filed his complaint. On November 20,201,5, Defendants filed an answer. (Answer, Docket
E.rt"y 24.) Plztnttff thereafter filed
a
motion to amend the complaint (Docket Entry 25) which
the Court gtanted. (Docket F,nty 29.) In his Amended Complaint, Plaintiff asserts claims
against two additional defendants, Monica Bond, Chief Disciplinary Officer, and Victot
2
Locklear, a Disciplinary Hearing Officet. (Docket Entry
25.) Plaintiff
asserts that both
violated his Due Process rights. (1/.)
II.
A.
DISCUSSION
MotionforAcces¡ to Photocopliagand Notary Service¡
In Plaintiffls motion entided "Motion for
Services" (Docket Entry 26), he contends that
photocopying and
notaLry services,
Access
if
to
Photocopying and Notary
he is not able to obtain access to
Defendants will have anunfair advantage because Plaintiff
is "incarcerated, pro se, indigent, and cannot properly litigate his case." (Id. at 6.) In Boands
u.
Smith, the Supreme Court held that an inmate is entitled to "a reasonably adequate opportunity
to present claimed violations of fundamental constitutional rights to the courts." 430 U.S. 817,
825 (1,977);
see
also Hadqeth u.
Figin¡ 584 F.2d
1,345, 1,347 (4th
Cir. 1978). Subsequently, in
l-¿wi¡ u. Casell, the Supreme Coutt clarified the Boand¡ decision by concluding that a deprivation
of an inmate's tight of
access
to the courts is only actionable when the inmate is able to
demonstrate actual injury as a tesult. 518 U.S. 343,349 (1996). Additionally, the Court furthet
teasoned that the Constitution only requires that inmates be ptovided with the tools needed
to "attack their
sentences, directly
confinement." Id.
lawsuits." Kelþ
u.
^t355.
or collaterally, and to challenge the conditions of their
Thus, "prisoners do not have
a
dght to free photcicopies for use in
York Cry. Prison, 325 F. App'r 144, 1,45 (3d Cir. 2009); McRauion
u. Solomon,
No. 5:13-CT-3133-FL,201,4 WL 5810311, at x3 (E.D.N.C. Nov. 7,201,4) (finding that "there
is no constitutional right to access to free photocopies'); ll/alker u. Hardinger, No. CIV.A. JtrM-
1.5-2583,2015 \)7L 5199594,
ú x2 (D. Md. Sept. 4, 201,5) (finding that the plaintiff did "not
have an unfetteted constitutional
rþht to free copy work in the absence of showing that
a
J
defendants'tefusal to copy his legal work prevented him from meeting deadlines, otherwise
prejudiced him in any pending litigation, ot actually impeded his access to the courts').
Hete, it is unclear whether Plaintiff has suffeted an injury. Plaintiff does not allege that
he has been denied access to the facility's photocopy ot notaly services. Plaintiff merely
speculates that he
will be at a disadv antlage if this does happen. Moreover, it appears that
Plaintiff has been provided an adequate opportunity to present his claim. Plaintiff has fìled
and served several motions to the clerk of court and Defendants. Furthermore, Plaintiff stated
that his motion to amend his complaint was notarized (Docket Entry 46 at1), thus indicating
that Plaintiff does have access to notary services. Because Plaintiff has failed to allege that he
has suffered an acttal injury, his motion is denied.
B. Motion¡
to
Amend Amended Conplaint
Plaintiff filed two motions to amend his Amended Complaint (Docket Entries 32,33);
the issue is whether Plaintiffs motions are amendments to the Amended Complaint or
supplemental pleadings.l The first motion contains the proposed changes to the Amended
Complaint, while the second motion is the request for leave to admit the proposed changes.
These motions could have been filed together as one motion.
(See
generuilþ
Docket Entdes 32,
33). Plaintiffs first motion entitled "Motion to Amend and Supplement Complaints" (Docket
Etttty 32) is cleatly a supplemental pleading.2 i'Parties and courts occasionally confuse
I Defendants' Response to Plaintiffs two motions to amend his Amended Complaint
reveal that there
is coufusion regatding which Amended Complaint has previously been granted. In their Response,
Defendants argue that Plaintiffs ,\mended Complaint (Docket Etrtry 25) should be denied because
Plaintiffs new claim is futile. (Response
7-2, Docket Entry 36.) However, Plaintiffs Motion to
^t hzd aheady been granted by the Court rendering
,\mend the Complaint (Docket Entry 25)
the
ârgument moot. (Docket F,nluy 29.)
2 In their Response, Defendants contend that Plaintiffs motions to amend his A.mended Complaint
4
supplemental pleadings with amended pleadings and mislabeling is common. However, these
misnomers are not of any significance and do not prevent the court from considering
to amend or supplement under the proper poftion of Rule 1.5."
See
a
motion
Aþert u. PvleyNo.
CIV.,A,.
H-04-CV-3774,2009 \XT, 1226762, at x3 (S.D. Tex. -A.pt. 30, 2009) (citing 6A Charles A.lan
Wrþht
et
a/.,Federal Practice and Procedure $ 1504, at1.84 Qd ed.1,990)). "Rule 15(d) allows
patties, by leave
occurrences
of court, to supplement their pleadings to set fofth
'transactions or
or events which have happened since the date of the pleading sought to
be
supplemented."' A¡hton u. Ciry of Contvrd, N.C., 337 tr. Snpp. 2d735,740 (À4.D.N.C. 2004)
(citing Fed. R. Civ. P. 15(d)). The Fourth Circuit has reasoned that the standard used fot ruling
on a motion to amend or on
a
motion to supplement are neady identical.
F'.3d 184, 198 n.15 (4th Cir. 2002).
F-ranks u. P.r0r,31.3
In both situations, leave should be freely granted, and only
denied where good reason exists such as prejudice to Defendants. Id.
Hete, Plaintiffs motion entitled "Motion to ,{,mend and Supplement Complaints"
(Docket Ent"y 32) does not contain new claims. In the document, Plaintiff states that Mr.
Spruill, a unit managet, "provided assistance on January 21, 201.5 at fPlaintiffs disciplinary
teheating]."
(A-. Compl. at 5, Docket
F,ntry 32.) Plaintiff contends that Mr. Spruill told
Plaintiff that his disciplinary hearing was "jacked-rp." (Id. at 5-6.) Thus, because Plaintiffs
motion does not contain new claims but simply supports his existing claims, the Court will
should be denied because they were filed after â court issued deadline. Because the Court finds that
Plaintiffs ftst motion is a supplement and the second motion is simply a request for leave to file an
-{mended Complaint, the court issued deadline barring both parties from amending the pleadings after
Jawary 11,,2016, does not apply.
5
construe Plaintiffs motion as a supplement to his Amended Complaint.3
,{.dditionally, the Court notes Defendants' assertion that "lawsuits are not a constantly
moving targetwith new claims and new defendants to be added whenever the Plaintiff decides
he should do
so."
(Itesponse at 1,-2, Docket Entry
36.)
Defendants should be able to
adequately defend against claims in an effìcient mannet. At this point, Plaintiff has been given
m^ny oppottunities to amend or supplement his original Complaint. Thus, unless justice
requires otherwise, no additional amended or supplemental pleadings will be allowed.a
C.
Mo tion
þr
Re
con¡ideration of Appoin tm enî of Coanse
/
Plaintiff also fìled a Motion for Reconsideration of his request for appointment of
counsel. The Court previously issued an order denying Plaintiffs fìrst motion to appoint
counsel. @ocket Entry
4.) In his motion, Plaintiff asserts that the Court
should appoint
counsel because he does not have access to a law hbrary, he only has a layman's knowledge
of
the law, and being a prisoner, he does not have the ability to investigate the facts of his case.
(Docket Entty 50 at 5, 10-16.) The issues highlighted by Plaintiff corìcern "the effect of
fPlaintiffs] imprisonment on his ability to litigate his case [and] are insuffìciently'exceptional'
to merit appointment of counsel" because they are cofiunon issues faced by most pro
prisoners.
Reeues u.
se
Ransom,No. 1:10CV56,201.1WL45491.44,at*8 (À4.D.N.C. Sept. 29,201,1)
Plaintiff also filed a second motion entitled "Motion to Amend Complaints" onJanuary 1,9,201,6.
(Docket Entry 33.) ,{,s explained above, Plaintiffs frst motion (Docket enty 32) is actually a
supplement to the Âmended Complaint. The Second motion is simply â request for leave to fi.le a
new r\mended Complaint. Thus, because there is not a new proposed Amended Complaint, the
second motion (tequesting leave to amend the Amended Complaint) should be denied as moot.
3
a
Based upon the ruling set forth herein, the Court notes that
30,32) will be construed together as Plaintiffls complaint.
(-¡
Plaintiffs pleadings (Docket Entties
2,
(ciangJoe u. F-underbar,ê, No. 8:06-119-GRÂ-BHH, 2006 WL 270701,'1., at*'1. Q).S.C. Sept.18,
2006); Zunigø u. Perry,
No. 1:15CV35, 2015 WL 5159299, at *7 (À4.D.N.C. Sept. 2, 2015)
(concluding that "the matters cited by the petitioner in his pleadings reflect conditions faced
by virtually all prisoner litigants and thus, by definition, do nor quali$r as circumstances of the
sort that w^n^nt appointment of counsel"). Furthermore, the absence
of alaw library
not yield "exceptional circumstances justifiring appointment of counsel."
No. 3:13-CV-590-FDW,
201,4
Dauidson u. Daui¡
WL 2696573, at *4 CX/.D.N.C. June 13, 201,4);
No. 1:14-CV-98-F'DW,201,4WL5243338,at *6 CX/.D.N.C. Oct.
does
Ross u. Conner,
1,5,201,4) (finding
thatwhile
the plaintiff argued he did not have access to a law libtary, only had alayman's knowledge
of
the law, and that his case was complex, the Plaintiff did not show that exceptional
circumstances justified appointment
attorney
of counsel). Additionally, Plaintiff contends that an
is needed to handle the
infotmation that he is not allowed to
considerable amount
see
of
discovery and confidential
for security reasons. Similady, these reasons do not
establish exceptional circumstances requiring appointment of counsel.
See
Gralt u. Cogdell,No.
2:14-CY-0473 KJN P,201,4WL2567409,at*3 (8.D. CaLJune 6,201,4) (finding the plaintiffs
argument that an attorney was needed
to handle considerable discovery and confìdential
documents was unpersuasive because the plaintiff did not establish exceptional circumstances
warranting appointment of counsel).
Plaintiff also contends that this
case is one
of exraordinary circumstances
because
it is
factually and legally complex, the case has merit, and Plaintiff does not have the capacity to
present his claims.
pocket Entry 50 at 8-9, 12,21-25.) Although Plaintiff
has amended and
supplemented his Complaint since the frst Motion for,tppointment of Counsel, at this time,
7
the Court fìnds that Plaintiffs case is not one that involves exceptional circumstances requfuing
counsel to be appointed. Miller u. Simmons, 814 F.2d 962,966 (4th Cir. 1,987). Plaintiff s new
claims
^re
not complex. Moreover, his filings show that he has the capacity to ptovide the
relevant facts, make arguments and use cases to support his assettions. Il/i/¡on u. Rabbar,No.
1,:1,4CY622,201.5WL1,97368,at*2 O{.D.N.C. Jan.14,201,5) ("Plaintiffs submissions show
that he is capable of representing himself in this matter. \X/hile, as he asserts, his confìnement
may present some challenges in litigating his claims, he has not demonstrated that he is unable
to pursue his claims without counsel");
Graues u. Sellars,
No. 1:12CV196, 2013WL942328,
at
x1 (À4.D.N.C. Mar. 11, 2013) (finding that the plaintiff failed to prove that exceptional
in his case tequired
circumstances
counsel to be appointed because the plaintiff demonsttated
the ability to fìle ptoper documents timely and the court futher noted that the nature of the
case was
not complex).
Additionally, Plaintiff contends that counsel should be appointed because his account of
the circumstances
creating
"^
in this case are directly in conflict with Defendants' position thereby
credibility contest" between the parties. (Docket Er,try 50
^t
16-17.)
"Nevefiheless, conflicting testimony and factual disputes are not'exceptional circumstances'
that entitle a plaintiff to appointed counsel."
201,2
ìVL
2499003,
^t
See
Garda u. Snith, No. 10CV1187 AJB RBB,
*5 (S.D. CaL June 27, 201,2). Thus, Plaintiffs Motion for
Reconsidetation is denied.
D. Motion¡
to Enter
Exhibit¡ into
the Court Record
Plaintiffs two motions to submit certain exhibits into the coutt tecotd are denied
moot. (Docket Enuies
as
45, 46.) The fìtst motion corìcerns the documents attached to
8
Plaintiffs motion entitled "Motion to
'\mend and Supplement Complaints." (Docket E.rtry
32.) Plain:d:ff attached exhibits showing that he took anget management and other programs
to bettet himself. (Am. Compl. at7-9,Docket E.,tty 32.) ,{,dditionally, Plaintiff also attached
two affidavits to suppott his claim that a unit manager believed his hearing was "jacked ,rp."
Qd. at
10-13.) Similady, Plaintiffs second motion to enter exhibits into evidence pertains to
exhibits that were attached to the original complaint. Both of PlaintifPs motions are denied
as
moot because the documents are aheady a pafi of the court record.
See l-,emarr u.
Doe,No.
CIV.A. L-05-1,67,2006 WL 763617, at *2 (S.D. Tex. Mar. 23,2006) (reasoning that the plaintiff
did not have to fìle a separate motion to enter exhibits into evidence because appending
exhibits to the complaint is sufficient to enter the exhibits into the record).
E.
MotionsþrExtension ofTime to Comþlete Discouerl
Defendant's Second Motion for Extension of Time to Complete Discovery pocket
Etttty 53) is granted. Defendants shall have up to and including May 18, 2016, to respond to
Plaintiffs Second
Set
of Interrogatoties and Request fot Âdmissions and Second Request for
Production of Documents.
F-. Motioru to Sabpoena Prison and Medital Rewrds
Plaintiff also filed a Motion for Subpoena. (Docket Entry 48.) In this motion Plaintiff
seeks all
of his medical and prison tecords, prison policy documents, and much more from
John Herting, Supetintendent of Bertie Corectional Institution and the North Carolina
Department of Public Safety, Division of Pdsons. The Court otders that Defendants respond
to this motion before
ding
on this motion.
9
III.
CONCLUSION
Fot the reasons stated herein, PlaintifPs motion entitled "Motion to ,tmend and
Supplement Complaints" (Docket Entry 32), will be construed as a supplement to Plaintiffs
complaint. IT IS THEREFORE ORDERED that Plaintiffs Motion (Docket Entry
GRANTED. ,{dditionally, the Court finds that, unless justice requires
3)be
otherwise, no
amended or supplemental pleadings will be allowed going forward.
IT IS FURTHER ORDERED
that Plaintiffs motion entitled "Motion for,{.ccess
to Photocopying and Notary Services" (Docket Entty 26) and Plaintiffs motion entitled
"Plaintiffs Motion to Reconsider Appointment of Counsel (D.8. 3) and Memorandum of
Law in Support" (Docket Entty 50) are DENIED.
IT IS FURTHER ORDERED
be
DENIED
as
that Plaintiffs motions (Docket Entries 33,45,46)
moot.
IT IS FURTHER ORDERED
that Defendant's Second Motion for Extension
of
Time to Complete Discovery Q)ocket Entry 53) is GRANTED. Defendants shall have up
to and including May 18,
201,6,
to respond to Plaintiffs Second Set of Interogatories and
Request for ,\dmissions and Second Request for Production of Documents.
IT IS FURTHER ORDERED that Defendants respond to Plaintifls Motion for
Subpoena Q)ocket Entry a8) by May 18, 201,6.
,\pril ?âzorc
,-l
stef
tates Magistrate Judge
oe
Uni
10
e
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