Newell v. White et al

Filing 20

ORDER denying 4 Motion to Appoint Counsel; denying 9 Motion for TRO/Motion for Preliminary Injunction; and granting 18 Motion for Leave to Amend and Supplement Original Complaint. Signed by Chief Judge Frank D. Whitney on 2/24/14. (Pro se litigant served by US Mail.)(khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14-cv-320-FDW
JONATHAN JAMES NEWELL,
Plaintiff,
vs.
SUSAN R. WHITE, et al.,
Defendants.
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ORDER

THIS MATTER is before the Court on Plaintiff’s Motion to Appoint Counsel, (Doc. No.
4), Plaintiff’s Motion for Temporary Restraining Order/Motion for Preliminary Injunction, (Doc.
No. 9), and on Plaintiff’s Motion for Leave to Amend and Supplement Original Complaint,
(Doc. No. 18).
I.

BACKGROUND

On December 16, 2014, pro se Plaintiff Jonathan James Newell, a state court inmate
currently incarcerated at Mountain View Correctional Institution, filed this action pursuant to 42
U.S.C. § 1983, 42 U.S.C. § 1985, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et
seq., against the following Defendants: Susan White, identified as the Superintendent of
Alexander Correctional Institution; Jackie Huggins, identified as a Unit Manager at Mountain
View Correctional Institution; and Lynn B. Ollis, identified as a Mail Room Clerk at Mountain
View Correctional Institution. (Doc. No. 1). In the Complaint, Plaintiff alleges that on October
22, 2013, after Plaintiff was sent to “cool down” following a verbal altercation with Defendant
Ollis, Defendant White, who was visiting Mountain View that day, ordered Defendant Huggins

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to seize Plaintiff’s legal files without first providing a deprivation hearing in violation of
Plaintiff’s due process rights. (Doc. No. 1 at 2; 12). Plaintiff alleges that Defendant Huggins
returned the legal files to Plaintiff the next day. (Id. at 13). Plaintiff also alleges that Defendant
Ollis tampered with Plaintiff’s mail in collusion with Defendant White. (Id. at 2). As to the
verbal altercation with Defendant Ollis on October 22, 2013, Plaintiff alleges that Defendant
Ollis “abuse[d] her authority as a mail room clerk in a collusive effort to assist in provoking me
by my mental health issues to get me into segregation to gain access to my legal files.” (Id. at
13). Plaintiff seeks various forms of injunctive relief, as well as compensatory and punitive
damages. (Id. at 5).
II.

DISCUSSION

A. Plaintiff’s Motion for Temporary Restraining Order/Preliminary Injunction
A preliminary injunction is an extraordinary remedy afforded before trial at the discretion
of the district court. In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-26 (4th Cir. 2003).
It is an extraordinary remedy never awarded as of right. Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 24 (2008). In each case, courts “must balance the competing claims of injury
and must consider the effect on each party of the granting or withholding of the requested relief.”
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). “[C]ourts of equity should
pay particular regard for the public consequences in employing the extraordinary remedy of
injunction.” Winter, 555 U.S. at 24. To obtain a preliminary injunction, the plaintiff must
establish (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4)
that an injunction is in the public interest. Real Truth About Obama, Inc. v. Fed. Election

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Comm’n, 575 F.3d 342, 346 (4th Cir. 2009).
Reviewing Plaintiff’s motion based on the above factors, Plaintiff is not entitled to a
temporary restraining order or a preliminary injunction. In support of his motion, Plaintiff states
that he “seeks a temporary restraining order and a preliminary injunction to ensure that plaintiff
is safe and secure in his person and property, mental health, medical care, mailing rights, plus
access to the courts.” (Doc. No. 9 at 1). Plaintiff does not speculate as to how he is being
irreparably harmed during the pendency of the instant action. Moreover, Plaintiff does not show
that he is likely to prevail in this action. At most, Plaintiff alleges that his legal files were taken
from his cell for a brief time period and then returned to him. Plaintiff has simply not shown that
he is entitled to a temporary restraining order or a preliminary injunction, and his motion will
therefore be denied.
B. Plaintiff’s Motion to Amend
Rule 15(a) states that a court “should freely give leave when justice so requires.” FED. R.
CIV. P. 15(a)(2). A plaintiff may amend the complaint once as a matter of course within 21 days
after serving the complaint, or within 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f), which is earlier. FED. R. CIV. P. 15(a)(1).
Plaintiff’s motion to amend is granted. The Court advises Plaintiff, however, that if he seeks to
amend the Complaint, he must submit an amended complaint that contains all claims he intends
to bring in this action against all Defendants he intends to sue. That is, a plaintiff may not amend
his complaint by merely adding defendants and claims in a piecemeal fashion. Furthermore,
generally once Plaintiff amends his Complaint, his original Complaint is superseded, meaning
that if an amended complaint omits claims raised in the original complaint, the plaintiff has

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waived the omitted claims. Young v. City of Mt. Ranier, 238 F.3d 567 (4th Cir. 2001).
C. Plaintiff’s Motion to Appoint Counsel
Finally, as to Plaintiff’s motion to appoint counsel, Plaintiff states that the issues are
complex, he is incarcerated and has no access to a law library, a trial will involve conflicting
testimony, and he has numerous personality disorders. See (Doc. No. 4). There is no absolute
right to the appointment of counsel in civil actions such as this one. Therefore, a plaintiff must
present “exceptional circumstances” in order to require the Court to seek the assistance of a
private attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons, 814 F.2d
962, 966 (4th Cir. 1987). Notwithstanding Plaintiff’s contentions to the contrary, this case does
not present exceptional circumstances that justify appointment of counsel. Therefore, Plaintiff’s
Motion to Appoint Counsel will be denied.
III.

CONCLUSION

For the reasons stated, herein, Plaintiff’s motion to amend is granted, and his motions to
appoint counsel and for a temporary restraining order/preliminary injunction are both denied.
IT IS, THEREFORE, ORDERED that:
(1) Plaintiff’s Motion for Leave to Amend and Supplement Original Complaint, (Doc.
No. 18), is GRANTED.
(2) Plaintiff’s Motion for Temporary Restraining Order/Motion for Preliminary
Injunction, (Doc. No. 9), and his Motion to Appoint Counsel (Doc. No. 4), are
DENIED.
Signed: February 24, 2015

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