Hyman v. Miller et al

Filing 104

ORDER denying 89 Motion for Discovery Video Footage; granting 98 Motion to Strike Miscellaneous Documents at D.E. #32, 33, 34, 35, 40, 49, 52, 54, 65, 67, 68, 69, 71, 82, 93, 94, 97; denying 103 Motion to Appoint Counsel. Signed by Chief Judge Frank D. Whitney on 2/27/2018. (Pro se litigant served by US Mail.)(tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-62-FDW
DEVIN HYMAN,

)
)
Plaintiff,
)
)
vs.
)
)
FNU MILLER, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on Plaintiff’s Second Motion for Video Footage,
(Doc. No. 89); Defendants’ Motion to Strike, (Doc. No. 98); and Plaintiff’s Motion to Appoint
Counsel, (Doc. No. 103).
1. Plaintiff’s Motion to Appoint Counsel, (Doc. No. 103)
First, in support of the motion to appoint counsel, Plaintiff asserts that he is a layman and
does not understand this Court’s rules; he is not aware of rule violations until they are
committed; and he has mental health issues. 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 justifying appointment of counsel. Therefore, Plaintiff’s motion to appoint
counsel will be denied.
2. Defendants’ Motion to Strike, (Doc. No. 98)
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Next, Defendants have filed a motion to strike various documents filed by Plaintiff in
this matter. Defendants’ motion is granted for the reasons stated in the motion—that is, the
documents at issue are not allowed under Rule 7(a) of the Federal Rules of Civil Procedure.
3.

Plaintiff’s Second Motion for Video Footage, (Doc. No. 89)

Finally, in this pending, third “motion” for document production, Plaintiff requests for
the first time video surveillance from June 18, 2016. The Court denies the motion for the
reasons stated in Defendants’ brief in opposition. That is, pursuant to the Pretrial Order and Case
Management Plan entered by the Court on April 24, 2017, all discovery was to be completed by
the parties on August 18, 2017. (Doc. No. 76). This discovery deadline has not been extended
by the parties or by the Court. Accordingly, Plaintiff’s third “motion” for document production,
filed on December 7, 2017, is untimely as discovery has ended in this case.
In addition to being untimely, this is also Plaintiff’s first document request for video
surveillance from June 18, 2016—a date which has nothing to do the facts of the underlying
action. Plaintiff alleged in his underlying Complaint that he was involved in an altercation with
correctional officers on February 4, 2016. (Doc. No. 1 at 3). This pending action involves the
alleged altercation from February 4, 2016, and it is unclear why video surveillance from June 18,
2016, is relevant to Plaintiff’s claims against Defendants.
IT IS THEREFORE ORDERED that:
(1)

Plaintiff’s Second Motion for Video Footage, (Doc. No. 89), is DENIED;
Defendants’ Motion to Strike, (Doc. No. 98), is GRANTED; and Plaintiff’s Motion
to Appoint Counsel, (Doc. No. 103), is DENIED.
Signed: February 27, 2018

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