Varney v. Mullisk et al

Filing 24

ORDER denying 22 Motion to Compel; denying 23 Motion to Appoint Counsel. Signed by Chief Judge Frank D. Whitney on 03/25/2015. (Pro se litigant served by US Mail.)(jlk)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-595-FDW
LOWELL MASON VARNEY,

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Plaintiff,
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vs.
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FNU MULLISK, et al.,
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Defendants.
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___________________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion to Compel, (Doc. No. 22); and
on Plaintiff’s Motion to Appoint Counsel, (Doc. No. 23).
On January 22, 2015, this Court entered an order requiring Plaintiff to notify the Court why
he has not returned a summons so that service may be effectuated on Defendant Uris Bennett, who
is alleged to have been a correctional officer at Lanesboro Correctional Institution at all relevant
times. Plaintiff has explained in his response, which was filed as a motion to compel, that officials
at Lanesboro Correctional Institution have indicated that they will provide the Court with
Defendant Bennett’s personal address, but that the address would not be disclosed to Plaintiff for
security reasons.
Generally, a plaintiff is responsible for effectuating service on each named Defendant
within the time frame set forth in Fed. R. Civ. P. 4(m), and failure to do so renders the action
subject to dismissal. However, if an incarcerated plaintiff proceeding in forma pauperis provides
the Marshals Service sufficient information to identify the defendant, the Marshals Service’s
failure to complete service will constitute good cause under Rule 4(m) if the defendant could have
been located with reasonable effort. See Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995).
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Before a case may be dismissed based on failure to effectuate service, the Court must first ensure
that the U.S. Marshal has used reasonable efforts to locate and obtain service on the named
defendants. See Greene v. Holloway, No. 99-7380, 2000 WL 296314, at *1 (4th Cir. Mar. 22,
2000) (where the district court dismissed a defendant in a Section 1983 action based on the
prisoner’s failure to provide an address for service on a defendant who no longer worked at the
sheriff’s office, remanding so the district court could “evaluate whether the marshals could have
served [Defendant] with reasonable effort”). Therefore, this Court will instruct the U.S. Marshal
to use reasonable efforts to locate and obtain service on Defendant Bennett. By Plaintiff’s own
allegations, it appears that officials at Lanesboro have Bennett’s current address and will provide
it to the U.S. Marshal for service on Bennett.
Next, as to Plaintiff’s Motion to Appoint Counsel, Plaintiff contends that he has been
unable to find counsel to represent him; his imprisonment will greatly limit his ability to litigate;
the issues are complex; he lacks legal materials; and is a layperson without legal knowledge.
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). 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.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motion to Compel, (Doc. No. 22), is DENIED as moot; and Plaintiff’s
Motion to Appoint Counsel, (Doc. No. 23), is DENIED.

2.

The U.S. Marshal shall use all reasonable efforts to locate and obtain service on
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Defendant Bennett. If the U.S. Marshal is unable to locate and obtain service on
Bennett, the U.S. Marshal shall inform the Court of the efforts made in attempting
to locate this Defendant.
3.

The Clerk is respectfully instructed to mail a copy of this Order to the U.S. Marshal.

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