Covington v. Duncan et al

Filing 59

ORDER denying 54 Motion for Entry of Default against defendant Kyle Murray; denying 55 Motion to Compel Discovery; denying 56 Motion to Appoint Counsel. The Clerk is instructed to substitute the parties' names as follows: Jeffrey Duncan for FNU Duncan, Timothy D. Maynor for FNU Maynor, Kyle E. Murray for FNU Murray, Mark E. Camp for FNU Campo. Signed by Chief Judge Frank D. Whitney on 11/20/2018. (Pro se litigant served by US Mail.) (tmg)

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

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

ORDER

THIS MATTER is before the Court on Plaintiff’s pro se “Motion for Judgment by
Default,” (Doc. No. 54), “Motion for Order Compelling Discovery…,” (Doc. No. 55), and “Motion
for Appointment of Counsel…,” (Doc. No. 56).
First, Plaintiff argues that a default judgment should be entered in his favor against
Defendant Kyle E. Murray because he has not been served despite reasonable efforts to serve him
for five months. Defendant Murray has not been served to date and thus had no obligation to file
an Answer. Defendant Murray is not in default and accordingly Plaintiff’s Motion for Judgment
by Default will be denied.
Second, in his Motion to Compel, Plaintiff alleges that he requested from Defendants on
August 22, 2018, “any and all documents by doctor Kalinski on the medical assessment screening
and treatment describing the injury, treatment, and professional opinion of use of force on 1/5/16.”
(Doc. No. 55 at 1). On September 13, 2018, Defendants produced discovery but it did not include
the requested statements of Dr. Kalinski, stating that there are no such documents. Plaintiff also
seeks a report written by Dr. Kalinski “to contradict the defendant(s) assertion and/or scenario of
the use of force.” (Doc. No. 1 at 2). Defendants have filed a Response in opposition to the Motion
1

to Compel, admitting that Plaintiff issued discovery requests to Defendants, to which they
responded on September 13, 2018. (Doc. No. 57). Defendants have set forth the discovery requests
and responses verbatim. (Doc. No. 57 at 2). In a cover letter, Defendants explained to Plaintiff that
“review of the records revealed no report from Dr. Kalinski other than the medication
administration for the January 5, 2016 date. If additional records are provided by the Department
of Public Safety, Defendants response will be supplemented.” (Doc. No. 57 at 3). Defendants argue
that the Motion to Compel should be denied because Plaintiff failed to comply with Rule 37 of the
Federal Rules of Civil Procedure by failing to attempt to resolve the issue in good faith before
filing the motion, and because Defendants reasonably responded to Plaintiff’s discovery requests.
Plaintiff filed a Reply in which he appears to argue that he was not obligated to confer with
Defendants before filing his Motion to Compel because their discovery response was frivolous,
and that he needs the assistance of counsel to aid him in understanding the applicable rules and
pretrial order and case management plan. (Doc. No. 58). The Motion to Compel will be denied for
the reasons set forth in Defendants’ Response.
Third, in support of the Motion for Appointment of Counsel, Plaintiff states that he should
be appointed counsel because prison policy prohibits him from possessing medical documents.
(Doc. No. 56). 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). Although Plaintiff complains that prisoners are not
allowed to possess medical records per prison policy, Defendants have provided such information
to Plaintiff in response to his discovery requests. See (Doc. No. 57 at 2). Defendants explain that
the discovery Plaintiff seeks does not exist. This case does not present exceptional circumstances
2

that justify appointment of counsel. Therefore, Plaintiff’s Motion for Appointment of Counsel will
be denied.
Finally, the Clerk of Court will be instructed to correct the record to reflect the Defendants’
full and correct names.
IT IS THEREFORE ORDERED that:
(1)

Plaintiff’s “Motion for Judgment by Default,” (Doc. No. 54), is DENIED.

(2)

Plaintiff’s “Motion for Order Compelling Discovery…,” (Doc. No. 55), is
DENIED.

(3)

Plaintiff’s “Motion for Appointment of Counsel…,” (Doc. No. 56), is DENIED.

(4)

The Clerk of Court is instructed to substitute the parties’ names as follows:

Jeffrey Duncan for “FNU Duncan”
Timothy D. Maynor for “FNU Maynor”
Kyle E. Murray for “FNU Murray”
Mark E. Campo for “FNU Campo”

Signed: November 20, 2018

3