Covington v. Duncan et al

Filing 34

ORDER denying 31 Motion for Entry of Default, 32 Motion for Discovery and 33 Motion to Appoint Counsel. Signed by Chief Judge Frank D. Whitney on 3/2/2018. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-134-FDW
KARL L. COVINGTON, JR.,

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

ORDER

THIS MATTER is before the Court on Plaintiff’s “Declaration for Entry of Default,”
(Doc. No. 31), “Motion for an Order Compelling Discovery in Opposition to Defendants’
Affirmative Answers,” (Doc. No. 32), and Motion for the Appointment of Counsel, (Doc. No. 33),
as well as on periodic status review of the docket.
Pro se Plaintiff Karl Covington, Jr., filed this action pursuant to 42 U.S.C § 1983, alleging
that several employees of the Alexander Correctional Institution exercised excessive force against
him on January 5, 2016. In particular, he alleges that a “Sgt Murray” was one of the officers
escorting him to restrictive housing (lower red unit) on that day. (Doc. No. 12 at 1, 3, 6). The
Amended Complaint passed initial review against Defendants Duncan, Maynor, Murry, and
Campo. (Doc. No. 15). Service was returned executed as to all of the Defendants except for
Defendant Murray. The summons’ “remarks” section states “12-12-17 – Spoke to Captain on duty
at the prison – Captain Hester. He stated that there has never been a Robert Murray that worked at
the prison. Named person unable to be served or located.” (Doc. No. 20 at 1).
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
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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).
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 “Sgt. Murray.” If the U.S. Marshal obtains the home addresses for
the Defendant, the addresses may be redacted from the summons forms for security purposes
following service on this Defendant.
In his “Declaration for Entry of Default,” (Doc. No. 31), Plaintiff claims that default
judgment should be entered against all Defendants because they failed to timely file an answer.
Defendants Maynor, Duncan, and Campo, timely filed an Answer on January 9, 2018, and
Defendant Murray has not yet been served. Therefore, the Motion seeking default judgment will
be denied.
Plaintiff’s Motion seeking discovery, (Doc. No. 32), is premature. See Fed. R. Civ. P.
26(c) (as a general matter, a party must make initial disclosures at or within 14 days after the
parties Rule 26(f) conference); Local Rule 26.1 (“Official Court-ordered and enforceable
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discovery does not commence until issuance of the scheduling order.”). Moreover, routine
discovery requests should not be filed with the Court. See Local Rule 26.2 (“The parties shall not
file any initial disclosures, designations of expert witnesses and their reports, discovery requests
or responses therto, deposition transcripts, or other discovery material unless: (1) directed to do so
by the Court; (2) such materials are necessary for use in an in-court proceeding; or (3) such
materials are filed in support of, or in opposition to, a motion or petition.”). Therefore, Plaintiffs
motion seeking discovery will be denied.
Finally, Plaintiff seeks the appointment of counsel, (Doc. No. 33). Plaintiff states that he is
unable to afford counsel, his incarceration and segregation status which will greatly limit his ability
to litigate, the issues in the case are complex and will require significant research and investigation,
and Plaintiff has limited knowledge of the law.
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). 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.

The U.S. Marshal shall use reasonable efforts to locate and obtain service on

Defendant “Sgt. Murray.”
2.

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

3.

Plaintiff’s “Declaration for Entry of Default,” (Doc. No. 31), is DENIED.

4.

Plaintiff’s “Motion for an Order Compelling Discovery in Opposition to

Defendants’ Affirmative Answers,” (Doc. No. 32), is DENIED.
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5.

Plaintiff’s Motion for the Appointment of Counsel, (Doc. No. 33), is DENIED.

Signed: March 2, 2018

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