Hall v. Pruitt et al

Filing 44

ORDER that Plaintiff's 42 and 43 "Motion[s] Omnibus" are GRANTED in part and DENIED in part as follows: Plaintiff's requests for the appointment of counsel and for waiver of the filing fee are DENIED; Plaintiff's request for a judicial settlement conference is GRANTED. The Clerk is instructed to refer this matter to Magistrate Judge William C. Metcalf and schedule a judicial settlement conference. FURTHER ORDERED that this matter is hereby scheduled for trial during the Court's January 11, 2021 mixed trial term. The parties will be advised at a later time of the precise trial date during that term. (Jury Trial set for 1/11/2021 at 9:01 AM in Courtroom 1, 100 Otis St, Asheville, NC 28801 before Chief Judge Martin Reidinger.) (Pro se litigant served by US Mail.)(khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:18-cv-00044-MR
ADAM WADE HALL,

)
)
Plaintiff,
)
)
vs.
)
)
TERESA PUETT, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s “Motion[s] Omnibus”
[Docs. 42, 43].
Pro se incarcerated Plaintiff filed this civil rights action pursuant to 42
U.S.C. § 1983 with regards to an incident that allegedly occurred at the
Marion Correctional Institution.

Plaintiff was granted leave to proceed

without prepaying the filing fee pursuant to 28 U.S.C. § 1915, and the Court
entered an Order directing that monthly payments be deducted from
Plaintiff’s prison account and forwarded to the Court. [Doc. 6]. Plaintiff’s
claims against Defendants in their individual capacities survived dispositive
motions and the case is ripe for trial. [See Docs. 11, 41].
Plaintiff has now filed two Motions, in which he seeks waiver of the
filing fee, the appointment of counsel, and a judicial settlement conference.

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The Prison Litigation Reform Act (“PLRA”) provides that, “if a prisoner
brings a civil action … in forma pauperis, the prisoner shall be required to
pay the full amount of the filing fee….” 28 U.S.C. § 1915(b)(1). Thus, the
PLRA “makes prisoners responsible for their filing fees the moment the civil
action or appeal is filed, … [and] by filing the complaint or notice of appeal,
the prisoner waives any objection to the fee assessment by the district court.”
McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) (citation
omitted), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007);
see also Goins v. Decaro, 241 F.3d 260, 262 (2d Cir. 2001) (“we are not at
liberty to read into the PLRA judicial authority to cancel remaining
indebtedness for withdrawn appeals.”); Williams v. Roberts, 116 F.3d 1126,
1127 (5th Cir. 1997) (“the filing fee is to be assessed for the privilege of
initiating an appeal, without regard to the subsequent disposition of the
matter.”).
Plaintiff appears to ask the Court to waive the filing fee because he is
indigent.

Plaintiff is required to pay the full filing fee in installments

regardless of his indigency, and therefore, his request to waive the remainder
of the filing fee is denied. See McGore, 114 F.3d at 607; 28 U.S.C. §
1915(b)(1).

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Plaintiff also seeks the appointment of counsel to represent him in
pursuing his claim. 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).
Plaintiff argues that he has a valid claim, counsel would provide him
with advice and enable him to conduct his case, and Plaintiff is unable to use
any legal material or access the courts. Plaintiff has adequately represented
himself in this action despite his pro se incarcerated status. The record
belies his allegations of extraordinary circumstances and lack of access to
the courts. Therefore, the Motion seeking the appointment of counsel will be
denied.
Finally, Plaintiff seeks a judicial settlement conference. This request
will be granted. This case will be referred to Magistrate Judge W. C. Metcalf
for a judicial settlement conference that will be scheduled by the Clerk of
Court. Trial will be scheduled for the Court’s January 11, 2021 mixed trial
term.
IT IS, THEREFORE, ORDERED that Plaintiff’s “Motion[s] Omnibus”
[Doc. 42, 43] are GRANTED in part and DENIED in part as follows:
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(1)

Plaintiff’s requests for the appointment of counsel and for waiver

of the filing fee are DENIED; and
(2)

Plaintiff’s request for a judicial settlement conference is

GRANTED. The Clerk is instructed to refer this matter to Magistrate Judge
William C. Metcalf and schedule a judicial settlement conference.
IT IS FURTHER ORDERED that this matter is hereby scheduled for
trial during the Court’s January 11, 2021 mixed trial term. The parties will be
advised at a later time of the precise trial date during that term.
IT IS SO ORDERED.
Signed: September 2, 2020

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