Gaines v. Tomasetti et al

Filing 103

ORDER denying 102 MOTION to Appoint Counsel; deferring ruling on 100 Renewed Motion for Jury Trial; Justin Clinard answer to amended complaint due 11/6/2012. Further ordered case caption to be modified as ordered. Signed by Chief Judge Robert J. Conrad, Jr on 10/16/12. (Pro se litigant served by US Mail.)(bsw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:09-cv-217-RJC
DARRELL GAINES,
Plaintiff,
v.
JUSTIN CLINARD,
Defendant.

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ORDER

THIS MATTER is before the Court on Plaintiff’s renewed motion for a jury trial, (Doc.
No. 100), and his motion to appoint counsel to represent him, (Doc. No. 102), in an action filed
under 42 U.S.C. § 1983.
I.

BACKGROUND
Plaintiff filed this pro se Section 1983 complaint against several defendants who he

alleges were serving as police officers for the City of Asheville. Plaintiff alleges that the named
defendants unlawfully arrested him or issued citations to him for trespassing on the grounds of
an Asheville public housing project on various dates.1 Defendant Curtis Jones filed a motion for
summary judgment which the Court granted after finding that Plaintiff had failed to allege
material facts such that a reasonable fact finder could find in his favor. (Doc. Nos. 73; 93: Order
on Motion for Summary Judgment). The remaining defendants filed a motion to dismiss under
Federal Rule of Civil Procedures 12(b)(6). (Doc. No. 76). The Court granted the motion in part
and denied the motion in part. The Court found that Plaintiff had failed to state claims upon

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Defendants Nash and Doe were dismissed for failure to state a claim earlier in the case.
(Doc. No. 4).
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which relief could be granted against Defendants Bigelow, Bryson, Fisher, C. Jones, McCabe,
Tomasetti, and Torgow, and therefore dismissed Plaintiff’s claims against them with prejudice.
The Court denied Defendant Clinard’s motion to dismiss after concluding that Plaintiff had
presented sufficient facts to at least survive the motion to dismiss. (Doc. No. 94). Plaintiff
appealed to the United States Court of Appeals for the Fourth Circuit. (Doc. No. 95).
On October 2, 2012, the Fourth Circuit found that Plaintiff was appealing from an order
which dismissed all defendants save Defendant Clinard. The Court concluded that it could not
exercise jurisdiction over the district court’s order of dismissal because it was not a final order
which disposed of all of Plaintiff’s claims nor was it an appealable interlocutory order. Gaines v.
Tomasetti, et al., No. 12-6885 (4th Cir. Oct. 2, 2012) (unpublished). (Doc. No. 101).
Prior to Plaintiff’s appeal, Defendant Clinard filed an answer to Plaintiff’s complaint, and
Plaintiff then filed an amended complaint. (Doc. Nos. 56; 61). Next, Defendant Clinard joined
the remaining defendants in filing the motion to dismiss the amended complaint. (Doc. No. 76).
II.

DISCUSSION
Plaintiff has filed two motions, one seeking appointment of counsel and one seeking to

renew his motion for a jury trial. For the reasons that follow, the Court will deny Plaintiff’s
motion for counsel and defer ruling on the motion for a jury trial.
A.

Motion for Counsel

Plaintiff has filed a motion to appoint counsel contending only that he is ready to move
forward with his allegations against the lone remaining defendant. (Doc. No. 102). Under 28
U.S.C. § 1915(e)(1), the Court has discretion to request the assistance of an attorney to assist an
indigent person in a civil case. In order to support the exercise of the Court’s discretion, the
litigant must demonstrate exceptional circumstances. Whisenant v. Yuam, 739 F.2d 160, 163
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(4th Cir. 1984), abrogated in part on other grounds by Mallard v. U.S. Dist. Ct. of Iowa, 490 U.S.
296, 298 (1989) (noting that 28 U.S.C. § 1915 does not authorize the compulsory appointment of
counsel); see also Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968) (recognizing the
appointment of counsel in a civil case “is a privilege not a right.”).
The Court has examined Plaintiff’s amended complaint and his various responses to the
defendants’ motion to dismiss his amended complaint; Defendant Jones’ motion for summary
judgment; and Plaintiff’s renewed motion for a jury trial. The Court finds that Plaintiff has been
able to fairly articulate his positions in this matter and has failed to present exceptional
circumstances to warrant appoint of counsel. This motion will therefore be denied.
B.

Motion for Jury Trial

Defendant Clinard has not yet filed an answer to Plaintiff’s amended complaint. As the
Fourth Circuit has dismissed Plaintiff’s appeal for lack of jurisdiction, the Court will provide
Defendant Clinard with twenty (20) days from entry of this Order to file an answer to Plaintiff’s
amended complaint.
The Court finds that a decision on Plaintiff’s renewed motion for a jury trial should be
deferred. Should Plaintiff’s amended complaint survive any dispositive motions filed by
Defendant Clinard, the Court will rule on Plaintiff’s motion.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Defendant Clinard shall have twenty (20) days from entry of this Order to file an
answer to Plaintiff’s amended complaint, (Doc. No. 61);

2.

Plaintiff’s Motion for Appointment of Counsel, (Doc. No. 102), is DENIED;

3.

Plaintiff’s Renewed Motion for a Jury Trial, (Doc. No. 100), is DEFERRED
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pending the resolution of any dispositive motions in this case; and
4.

The Clerk of Court is directed the change the caption of this case to reflect the
sole Defendant as Justin Clinard.

Signed: October 16, 2012

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