Adkins v. Martin et al

Filing 26

ORDER: (1) Plaintiff's 23 submission is construed as a Motion for Default Judgment and is DENIED. (2) Plaintiff's 24 Motion for Appointment of Counsel is DENIED. (3) Plaintiff's 25 Motion for Default Judgment is DENIED. Signed by Chief Judge Frank D. Whitney on 9/5/2018. (Pro se litigant served by U.S. Mail with this Order, the 22 Waiver, and a docket sheet.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-343-FDW
DARRYL BOYD ADKINS,

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Plaintiff,
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vs.
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FNU MARTIN, et al.,
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Defendants.
)
____________________________________)

ORDER

THIS MATTER is before the Court on Plaintiff’s pro se “Motion Notice to Clerk of Court
of Defendants Request for Waiver to Clerk of Court and to Plaintiff, that Defendant Answer to All
Plaintiff Complaint and Relief” (Doc. No. 23), Motion for the Appointment of Counsel, (Doc. No.
24), and “Motion for Default Judgment Against Defendant & Waiver of Service,” (Doc. No. 25).
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).
In support of the Motion for Appointment of Counsel, Plaintiff states that he is unable to
afford counsel and has requested leave to proceed in forma pauperis, his imprisonment will greatly
limit his ability to litigate the case, the issues are complex, he has limited access to the law library
and limited knowledge of the law, the case will require significant research and investigation,
Plaintiff has no access to a law library and no knowledge of the law, Plaintiff’s outgoing and
incoming mail are tampered with because the Defendant has a lot of friends and relatives at Marion
C.I., a trial will likely involve conflicting testimony that counsel would be better able to present,
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and Plaintiff has made repeated complaints and efforts to mail out certain complaints to the Raleigh
Administration Office.
This case does not present exceptional circumstances that justify appointment of counsel.
Therefore, Plaintiff’s motion to appoint counsel will be denied.
Petitioner alleges in his “Motion Notice to Clerk” and Motion for Default Judgment that
Defendant Martin and DPS have failed to comply with the Court’s Order requiring a response to
the waiver of service request by July 30, 2018, (Doc. No. 18), and therefore default judgment
should be entered in Plaintiff’s favor.
Defendant Martin timely returned the executed Waiver of Service on July 27, 2018. (Doc.
No. 22). The Answer is due on September 25, 2018. Defendant Martin is not in default and
Plaintiff’s Motions will be denied.
IT IS THEREFORE ORDERED that:
(1)

Plaintiff’s “Motion Notice to Clerk of Court of Defendants Request for Waiver to Clerk
of Court and to Plaintiff, that Defendant Answer to All Plaintiff Complaint and Relief”
(Doc. No. 23), is construed as a Motion for Default Judgment and is DENIED.

(2)

Plaintiff’s Motion for Appointment of Counsel, (Doc. No. 24), is DENIED.

(3)

Plaintiff’s Motion for Default Judgment, (Doc. No. 25), is DENIED.

(4)

The Clerk of Court is instructed to mail pro se Plaintiff a copy of the docket sheet and
Defendant Martin’s Waiver of Service, (Doc. No. 22).

Signed: September 5, 2018

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