Pendergrass v. NC Department of Public Safety et al

Filing 35

ORDER denying as moot 23 Motion to Dismiss for Failure to State a Claim; granting 30 Motion to Amend/Correct 1 Complaint; denying 31 Motion to Appoint Counsel. Signed by District Judge Robert J. Conrad, Jr on 9/9/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-129-RJC
GUY T. PENDERGRASS,

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Plaintiff,
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vs.
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N.C. DEPARTMENT OF PUBLIC
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SAFETY, et al.,
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Defendants.
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____________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion to Amend/Correct
Complaint, (Doc. No. 30), and on Plaintiff’s Motion to Appoint Counsel, (Doc. No. 31).
I.

BACKGROUND
Pro se Plaintiff is a state court inmate currently incarcerated at Albemarle Correctional

Institution in Badin, North Carolina. Plaintiff filed this action on February 26, 2013, naming as
Defendants the North Carolina Department of Public Safety, as well as eight nurses at Lanesboro
Correctional Institution (Bradley, Cranford, Martinez, Medlin, Rizaldi, Rushin, Shope, and
Tarrantina) and Lanesboro doctor Sami Hassan. Plaintiff describes himself in the Complaint as a
“55-year-old brittle diabetic,” and he generally alleges that Defendants were deliberately
indifferent to Plaintiff’s serious medical need arising from a blister on his toe, which resulted in
the amputation of his toe in October 2012, and then in further medical complications. See (Doc.
No. 1 at 5).
On August 19, 2013, this Court entered an Order dismissing from the Complaint
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Defendants Hassan, Martiniz, Shope, and Tarrantina, and ordering service on the remaining
Defendants. (Doc. No. 6). On October 8, 2013, summonses were returned as unexecuted for
Defendants Medlin, Rizaldi, and Cranford. (Doc. No. 10). On May 15, 2014, Defendants
Bradley and Rushing filed a motion to dismiss, which is pending before the Court. (Doc. No.
23). On June 18, 2014, Plaintiff filed the pending motion to amend complaint and motion to
appoint counsel.
II.

DISCUSSION
A. Plaintiff’s Motion to Amend
On June 18, 2014, Plaintiff filed the pending Motion to Amend/Correct Complaint, in

which he purports to add three additional defendants, and he provides more detailed allegations
regarding the claim for alleged indifference to serious medical needs. (Doc. No. 30). 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). After that, a plaintiff may
file a motion to amend the complaint. FED. R. CIV. P. 15(a)(2). Rule 15(a) instructs the Court to
freely grant motions to amend the pleadings. Here, the Court will grant the motion to amend the
Complaint.
B. Plaintiff’s Motion to Appoint Counsel
Plaintiff seeks counsel on the grounds that he is poor, incarcerated, and is a layperson
without legal knowledge and no access to a law library, and based on his contention that the
issues in this case are complex, and he will need assistance from counsel if this matter proceeds
to trial. There is no absolute right to the appointment of counsel in civil actions such as this one.

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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 at this time. If the case
proceeds to trial, the Court will revisit the issue of appointment of counsel.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motion to Amend/Correct Complaint, (Doc. No. 30), is GRANTED;

2.

Plaintiff’s Motion to Appoint Counsel (Doc. No. 31), is DENIED.

3.

The Clerk of this Court is directed to file as a separate docket entry the proposed
amended complaint in Docket No. 30, and that document shall be entered as the
“First Amended Complaint.”

4.

Per Plaintiff’s request, the Clerk shall send five summons forms to Plaintiff for
Plaintiff to fill out the names and information for the newly named and current
remaining Defendants who have not been served. When Plaintiff returns the
summons forms, the Clerk shall direct the U.S. Marshal to attempt service on
these Defendants.

5.

Because Plaintiff is being allowed to amend the Complaint, the pending motion to
dismiss the claims in the original Complaint by Defendants Rushing and Bradley
has been rendered moot. Thus, the pending Motion to Dismiss, (Doc. No. 23), is
DENIED as moot and without prejudice to Defendants Rushing and Bradley to

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file a motion to dismiss the Amended Complaint.

Signed: September 9, 2014

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