Person v. Lewis et al

Filing 14

ORDER denying as moot 5 Motion ; denying 6 Motion to Appoint Counsel ; denying without prejudice 8 Motion ; denying as non-justiciable 9 Motion ; denying without prejudice 10 Motion ; denying as moot 11 Motion. Signed by Chief Judge Robert J. Conrad, Jr on 3/22/2013. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-407-RJC
TROY N. PERSON,

)
)
Plaintiff,
)
)
vs.
)
)
ROBERT C. LEWIS,
)
G. SOLOMON,
)
L. PARSONS,
)
FNU COVINGTON, Captain,
)
ALVIN W. KELLER, JR.,
)
S.R. COBB,
)
R. NEELY, Superintendent,
)
)
Defendants.
)
___________________________________ )

ORDER

THIS MATTER is before the Court on the following motions by Plaintiff: (1) Motion for
Permission for Family to Pay Filing Fee, (Doc. No. 5); (2) Motion to Appoint Counsel, (Doc. No.
6); (3) Motion: Jury Demand to Hear All Proceedings of this Case, (Doc. No. 8); (4) Motion for all
Documents Presented to Western District Clerk of Court to be Presented as Evidence and Exhibits
at All Hearings and Trials Before Any Federal Courts, (Doc. No. 9); (5) Motion for Medicine
Neurontin Non-Narcotic for Medication of Seizure for Chronic Disease Be Left in Place so
Plaintiff Can Be Function to Understand Hearing, Trials and Procedures, (Doc. No. 10); (6) and
Motion for Withdrawal of Payment of $350 out of Plaintiff’s Trust Fund Account All at One Time,
(Doc. No. 11).
I.

BACKGROUND
Pro se Plaintiff Troy N. Person is a prisoner of the State of North Carolina, currently

incarcerated at Marion Correctional Institution. Plaintiff filed this lawsuit pursuant to 42 U.S.C. '

1983, naming the following seven individuals as Defendants: Captain Covington, Correctional
Officer, Lanesboro Correctional Institution; Robert C. Lewis, Director of the Division of Prisons,
North Carolina Department of Public Safety; George Solomon, Regional Director, North Carolina
Department of Public Safety Central; Richard Neely, Former Administrator, Lanesboro
Correctional Institution; Lawrence Parsons, Administrator, Lanesboro Correctional Institution;
Alvin W. Keller, Jr., former Secretary, North Carolina Department of Public Safety; and S.R.
Cobb, Program Services Coordinator, Lanesboro Correctional Institution.
Plaintiff alleges in the Complaint that in November 2010, while he was housed at
Lanesboro Correctional Institution, other inmates who were known gang members attacked and
beat him. (Doc. No. 1 at 6). Plaintiff alleges that, prior to the attacks, he complained to
Defendants that gang members had threatened to attack him, but Defendants did nothing to protect
Plaintiff. See (Id. at 8-12). Plaintiff alleges that Defendants violated his Eighth Amendment rights
by failing to protect him from a known threat from the gang members in the prison. (Id.).
Plaintiff filed the Complaint on July 2, 2012, followed by a Motion to Proceed in Forma
Pauperis on July 18, 2012. Also on July 18, 2012, Plaintiff filed a Motion for Permission for
Family to Pay Filing Fee, (Doc. No. 5), and a Motion to Appoint Counsel, (Doc. No. 6). On July
19, 2012, the Court terminated Plaintiff=s Motion to Proceed in Forma Pauperis because Plaintiff
did not file the motion at the time he filed the Complaint. On November 2, 2012, Plaintiff filed a
AMotion for Withdrawal of Payment of $350 out of Plaintiff=s Trust Fund Account all at One
Time,@ (Doc. No. 11). On February 19, 2013, Plaintiff paid the $350.00 filing fee.
II.

DISCUSSION
A.

Motions Related to Filing Fee

Because Plaintiff has paid the filing fee in this case, the following motions shall be
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dismissed as moot: Plaintiff=s Motion for Permission for Family to Pay Filing Fee, (Doc. No. 5),
and Motion for Withdrawal of Payment of $350 out of Plaintiff’s Trust Fund Account All at One
Time, (Doc. No. 11).
B.

Motion to Appoint Counsel

Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any
person [claiming in forma pauperis status] unable to afford counsel.” In considering whether to
request that an attorney represent Plaintiff, the Court must be cognizant that appointment of
counsel in civil actions “should be allowed only in exceptional circumstances.” Cook v. Bounds,
518 F.2d 779, 780 (4th Cir. 1975). Plaintiff states in support of his Motion to Appoint Counsel,
(Doc. No. 6), that he is unable to afford counsel, his incarceration limits his ability to litigate this
suit, the issues in the case are complex and will require significant research and investigation, and
he does not have access to a law library.
Plaintiff is not entitled to counsel because he paid the filing fee and is not proceeding in
forma pauperis. 28 U.S.C. § 1915(e)(1). Even if Plaintiff were claiming in forma pauperis status,
this case does not present exceptional circumstances that justify appointment of counsel. See
Cook, 518 F.2d at 780. Therefore, Plaintiff’s Motion to Appoint Counsel will be denied.
C.

Motion for Jury Demand

A party may demand a jury trial on any issue so triable “no later than 14 days after the last
pleading directed to the issue is served.” See FED. R. CIV. P. 38(b). A written demand served on
the opposing parties is required, not a motion with the court. Id. The right is waived if a party fails
to properly serve and file its demand for a jury trial. Id. Because a jury demand must be made on
the opposing parties rather than through a motion with the Court, the Court will deny Plaintiff’s
motion for a jury demand without prejudice to Plaintiff to demand such jury trial from Defendants
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in accordance with Rule 38(b) of the Federal Rules of Civil Procedure.
D.

Motion for Documents

In support of his Motion for all Documents Presented to Western District Clerk of Court to
be Presented as Evidence and Exhibits at All Hearings and Trials Before Any Federal Courts,
(Doc. No. 9), Plaintiff asserts that he sent various documents to this Court and that he would like
for them to be considered in his hearings and at trial. The Court will deny the motion as
non-justiciable. To the extent that Plaintiff would like for certain documents to be considered by
the Court with respect to his claims, he must submit the documents as attachments to either
pleadings or motions before the Court in accordance with the Federal Rules of Civil Procedure.
E.

Motion for Medicine

In support of his Motion for Medicine Neurontin Non-Narcotic for Medication of Seizure
for Chronic Disease Be Left in Place so Plaintiff Can Be Function to Understand Hearing, Trials
and Procedures, (Doc. No. 10), Plaintiff asserts that he seeks an order from the Court requiring
officials at Marion Correctional Institution, where he is currently housed, to continue treating
Plaintiff with Neurontin. Plaintiff contends that the medication helps him function properly, keeps
him from dying, and relieves his pain. Plaintiff states that without the medication he cannot think
or walk, and that he has nosebleeds and seizures. (Doc. No. 10 at 2).
The Court will deny Plaintiff’s motion without prejudice. Plaintiff has not alleged in the
original Complaint an Eighth Amendment claim based on the prison’s failure to give him
Neurontin. Even more significantly, Plaintiff has not named as Defendants in this action any
Marion Correctional Institution officials responsible for administering medicine to Plaintiff. See
United States v. Paccione, 964 F.2d 1269, 1275 (2d Cir. 1992) (stating that a court usually may not
issue an order against a non-party); see also FED. R. CIV. P. 65(d)(2) (limiting the persons or
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entities that can be served with a temporary restraining order). The Court will deny Plaintiff’s
motion without prejudice to allow Plaintiff, if he so chooses, to file a separate civil action alleging
an Eighth Amendment claim based on the failure of officials at Marion Correctional Institution to
give him Neurontin.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff=s Motion for Permission for Family to Pay Filing Fee, (Doc. No. 5), is
DENIED as moot;

2.

Plaintiff’s Motion to Appoint Counsel, (Doc. No. 6), is DENIED;

3.

Plaintiff’s Motion for Jury Demand, (Doc. No. 8), is DENIED without prejudice;

4.

Plaintiff’s Motion for all Documents Presented to Western District Clerk of Court
to be Presented as Evidence and Exhibits at All Hearings and Trials Before Any
Federal Courts, (Doc. No. 9), is DENIED as non-justiciable;

5.

Plaintiff’s Motion for Medicine Neurontin Non-Narcotic for Medication of Seizure
for Chronic Disease Be Left in Place So Plaintiff Can Be Function to Understand
Hearing; trials and procedures, (Doc. No. 10), is DENIED without prejudice; and

6.

Plaintiff’s Motion for Withdrawal of Payment of $350 out of Plaintiff’s Trust Fund
Account All at One Time, (Doc. No. 11), is DENIED as moot.

Signed: March 22, 2013

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