Wilson v. Simmons et al

Filing 69

ORDER denying 64 Motion in Limine; denying 67 Motion to Appoint Counsel ; denying 68 Pro Se MOTION for Subpoena. Signed by Senior Judge Graham Mullen on 4/29/2021. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-198-GCM
JAMES A. WILSON,

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Plaintiff,
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vs.
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BRETT SIMMONS, et al.,
)
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Defendants. )
______________________________)

ORDER

THIS MATTER is before the Court on pro se Plaintiff’s Motion for Appointment of
Counsel, (Doc. No. 67), and “Motion to Subpoena (3) Witnesses for their Testimony,” (Doc. No.
68). Also pending is a Motion In Limine filed by Defendants, (Doc. No. 64).
The incarcerated Plaintiff, who is proceeding in forma pauperis, filed this action pursuant
to 42 U.S.C. § 1983 with regards to the alleged use of excessive force at the Lanesboro
Correctional Institution. The case was scheduled for a jury trial on March 8, 2021, but that date
was continued and the case has now been reassigned. See (Doc. No. 66).
Defendants filed a Motion In Limine ahead of the March 8, 2021 trial date. (Doc. No.
64). The Motion is now moot as the trial has been continued. Therefore, it will be denied
without prejudice.
In his Motion to Appoint Counsel, the Plaintiff argues that he is unable to afford counsel
and has been unable to locate counsel on his own; his imprisonment will greatly limit his ability
to litigate this case which involves complex issues that will require significant research and
investigation; Plaintiff has no access to a law library and limited knowledge of the law; and the
trial will likely involve conflicting testimony which counsel would be better able to present.

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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). The Plaintiff has failed to demonstrate the
existence of extraordinary circumstances that would warrant the appointment of counsel, and
therefore, this request is denied.
In his Motion to subpoena witnesses, the Plaintiff cites Rule 16(e) of the Federal Rules of
Civil Procedure and seeks, “for their testimony:” Doctor Blakely, a surgeon at UNC Chapel Hill;
Erika D. Whitted, a registered nurse at Central Prison Hospital; and Anthony Corbett, an inmate
who allegedly witnessed the excessive force incident.1
Although the Plaintiff cites Fed. R. Civ. P. 16, it appears that the Plaintiff is seeking to
subpoena witnesses for trial pursuant to Fed. R. Civ. P. 45. As the Plaintiff was previously
informed in the February 22, 2021 Order denying the Plaintiff’s prior request to subpoena
witnesses, a request for subpoenas must include the witnesses’ addresses so that subpoenas may
be issued and a showing that the Plaintiff can afford to pay the costs associated with obtaining
the witnesses’ attendance at trial. See (Doc. No. 66) (it appears that the Plaintiff may not have
yet received the February 22 Order at the time he filed the instant Motion; the Plaintiff is
cautioned that making duplicative or vexatious filings may result in such filings being stricken).
Further, the issuance of subpoenas at this time would be premature because the trial has not yet
been rescheduled. The Plaintiff’s request for the issuance of subpoenas for trial is therefore
denied at this time. This denial is without prejudice for the Plaintiff to move for the issuance of

The North Carolina Department of Public Safety’s website includes three individuals named Anthony Corbett, none
of whom are currently incarcerated. See https://webapps.doc.state.nc.us/opi/offendersearch.do?method=list; Fed. R.
Ev. 201.
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subpoenas for witnesses’ presence at trial after the trial has been rescheduled. In such a motion,
the Plaintiff must provide adequate information for the Court to conclude that the subpoenas are
being issued for permissible purposes; identify those witnesses so that they can be located and
served; and demonstrate that he can pay the costs of securing those witnesses’ attendance at trial.
IT IS, THEREFORE, ORDERED that:
1.

The Plaintiff’s Motion for Appointment of Counsel, (Doc. No. 67), and “Motion
to Subpoena (3) Witnesses for their Testimony,” (Doc. No. 68), are DENIED.

2.

The Defendants’ Motion In Limine, (Doc. No. 64), is DENIED as moot.
Signed: April 29, 2021

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