Deal v. North Carolina Department of Correction Medical Department et al

Filing 24

ORDER denying 6 Motion for Injunction ; denying 11 Motion for Preliminary Injunction; denying 16 Motion for Preliminary Injunction; denying 17 Motion for Preliminary Injunction; denying 20 Motion to Appoint Counsel. Clerk to issue summons to US Marshal for service. Signed by Chief Judge Robert J. Conrad, Jr on 8/6/12. (Pro se litigant served by US Mail.)(com)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-364C
ROGER LEE DEAL, SR.,
Plaintiff,
v.
NORTH CAROLINA
DEP’T OF CORR.,
FNU STEVENS, FNU
TRIPLETT, INMATE,
Defendants.

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ORDER

THIS MATTER is before the Court upon initial review of Plaintiff’s Complaint filed
under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff has also filed four motions for an injunction,
(Doc. Nos. 6, 11, 16-17), and a motion to appoint counsel. (Doc. No. 20).
According to Plaintiff’s Complaint, he is a state prisoner confined to the Lanesboro
Correctional Institution. The brunt of Plaintiff’s Complaint alleges that Defendants have been
deliberately indifferent to what he contends are his serious medical needs. On June 11, 2012,
Plaintiff’s case was transferred to this Court from the Eastern District of North Carolina based on
Plaintiff’s incarceration within the Western District and because the allegations involve two
Defendants that reportedly work at Lanesboro. (Doc. Nos. 8, 9).
Plaintiff alleges that he was injured by an inmate at Lanesboro while walking back to his
room. Plaintiff apparently suffered an injury to his lip and the fall aggravated a previous back
injury which has left him with intense pain and muscle spasms. (Doc. No. 1 at 3). Plaintiff has
identified a neurosurgeon that he would like to be referred to, but to date one or more
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Defendants has failed to make this referral.
Plaintiff claims that prison officials failed to protect him from the alleged assault from
his fellow inmate. Plaintiff explains that he has written repeated grievances requesting an MRI
and surgery on his back but defendants have taken no action. Plaintiff also complains that some
of his personal property has been taken, perhaps in response to his grievances, and Plaintiff fears
retaliation from the Defendants based on his complaints. Plaintiff’s seeks compensatory damages
and medical treatment for his back, among other requests for relief. (Doc. No. 1 at 4-5).
Plaintiff has filed four (4) motions for an injunction which would appear to largely grant
him the relief he is seeking through his Complaint. The Court finds that Plaintiff’s allegations,
taken as true for purposes of this initial review, set out possible claims for relief. Accordingly,
the Court will direct the Defendants to file an answer or other response to the allegations raised
in Plaintiff’s Complaint. Because the Court has ordered the Defendants to file an answer or
response to the allegations raised in Plaintiff’s Complaint, his motions for an injunction will be
denied without prejudice.
Plaintiff has filed a motion for appointment of counsel to assist him with the prosecution
of his case. The law is clear that a civil litigant does not have a constitutional right to counsel.
See Whisenant v. Yuam, 739 F.2d 160, 163 (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) (noting that obtaining the assistance of counsel in a civil case “is a
privilege not a right.”). Rather, pursuant to 28 U.S.C. § 1915(e)(1), the Court has discretion to
request the assistance of an attorney for an indigent person in a civil case. In order to warrant the
Court’s exercise of this discretion, the litigant must demonstrate the existence of exceptional
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circumstances. Whisenant, 739 F.2d at 163. The existence of exceptional circumstances depends
upon “the type and complexity of the case, and the abilities of the individuals bringing it.” Id.
(quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982)). A plaintiff can show exceptional
circumstances by demonstrating that he “has a colorable claim but lacks the capacity to present
it.” Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978).
Plaintiff contends that his case will be complicated and he does not have sufficient
resources with which to hire an attorney. The Court finds that Plaintiff’s case does not present
exceptional circumstances which would support the appointment of counsel at this time.
Plaintiff’s motion will therefore denied without prejudice.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motions for an Injunction will be DENIED without prejudice, (Doc.

Nos. 6, 11, 16, and 17).
2.

Plaintiff’s Motion for Appointment of Counsel is DENIED. (Doc. No. 20).

3.

The Clerk of Court shall prepare process for each of the Defendants named in

Plaintiff’s Complaint and deliver the process to the U.S. Marshal for service;
4.

The U.S. Marshal shall serve process upon each of the Defendants; and

5.

Each of the Defendants should file a response to Plaintiff’s allegations in

accordance with the Federal Rules of Civil Procedure.

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Signed: August 6, 2012

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