LaKemper v. Solomon et al

Filing 40

ORDER granting 27 Motion for Reconsideration, denying 32 Motion for Discovery, 34 Motion to Stay Discovery, 35 Motion to Modify / Expand Discovery, 36 Motion for Recusal of Judge. Granting 31 and 37 Motion for Leave to File Supplemental Pleading and denying 38 Motion to Appoint Counsel. Signed by Chief Judge Frank D. Whitney on 5/7/2018. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-73-FDW
COBEY LAKEMPER,

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Plaintiff,
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vs.
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GEORGE T. SOLOMON, et al.,
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Defendants.
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____________________________________)

ORDER

THIS MATTER comes before the Court on the following motions by pro se Plaintiff
Cobey Lakemper: (1) Motion Seeking a Ruling as to Fourteenth Amendment re Order on Motion
for Reconsideration, (Doc. No. 27); (2) Motion for Leave to File Supplemental Pleading, (Doc.
No. 31); (3) Motion for Discovery, (Doc. No. 32); (4) Motion to Stay Discovery, (Doc. No. 34);
Motion to Modify/Expand Discovery, (Doc. No. 35); Motion for Recusal of Judge, (Doc. No.
36); Motion for Leave to File Supplemental Pleading, (Doc. No. 37); and Motion to Appoint
Counsel, (Doc. No. 38).
First, as to Plaintiff’s Motion Seeking a Ruling as to Fourteenth Amendment, Plaintiff
contends in his motion for reconsideration that he raised, in his Amended Complaint, a
Fourteenth Amendment due process claim based on his allegation that Defendants rejected and
then destroyed some of Plaintiff’s incoming and outgoing mail to and from family and friends
without providing notice or an opportunity to appeal. Plaintiff contends that the Court did not
address this particular claim on initial screening, and he wishes to pursue this claim. The Court
will grant the motion for reconsideration and allow Plaintiff to pursue this claim. Therefore, the

parties are advised that this claim should be addressed in any dispositive motions to be filed by
the parties.
Next as to Plaintiff’s two separately filed Motions for Leave to File a Supplemental
Pleading, Plaintiff states that he would like to supplement his Complaint, pursuant to Rule 15(d)
of the Federal Rules of Civil Procedure, to allege various, additional, factual allegations of
retaliation by various Defendants since the filing of this action. Rule 15(d) allows a party to
“serve a supplemental pleading setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.” Where a plaintiff seeks to supplement a
pleading to add related claims against the same defendants, the analysis under Rule 15(a) and
Rule 15(d) is the same. See Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. 2002) (“[T]he
standards used by a district court in ruling on a motion to amend or on a motion to supplement
are nearly identical.”). In either situation, leave should be freely granted, and should be denied
only on the grounds of prejudice, bad faith, or futility. Laber v. Harvey, 438 F.3d 404, 426-27
(4th Cir. 2006). The Court will grant Plaintiff’s motions to supplement.
Next, as to Plaintiff’s Motion for Discovery, filed on January 29, 2018, Plaintiff states
that he seeks 120 days in which to conduct discovery. On March 7, 2018, this Court filed a
scheduling order, setting the deadline for discovery as July 5, 2018, thus giving the parties 120
days from the Court’s order in which to conduct discovery. The Court will, therefore, deny
Plaintiff’s motion for discovery as moot.
Next, as to Plaintiff’s Motion to Stay Discovery, filed on March 21, 2018, Plaintiff states
that he seeks a “stay of discovery” until the Court rules on Plaintiff’s motion for reconsideration
seeking to pursue his Fourteenth Amendment claim, as discussed above. The Court will deny
the motion for discovery, as the parties still have ample time before the discovery deadline in

which to conduct discovery as to Plaintiff’s Fourteenth Amendment claim.
Next, as to Plaintiff’s Motion to Expand Discovery, also filed on March 21, 2018,
Plaintiff contends that, “[d]ue to the specifics of this case, including the extent of the issues and
acts and number of defendants, Plaintiff submits that this Court should allow in a modified
discovery order the following: 25 interrogatories per defendant pursuant to Rule 33 Fed. R. Civ.
P., 50 requests for admissions per defendant; 10 depositions by written questions; and an
unlimited number of requests for production of documents.” (Doc. No. 35 at 4). The Court will
deny Plaintiff’s motion, as the discovery allowed by the Court’s scheduling order allows ample
discovery from the parties.
Next, as to Plaintiff’s Motion for Recusal of Judge, Plaintiff seeks recusal of the
undersigned for various reasons, including that the undersigned has not yet ruled on the
various motions that the Court is now addressing. The Court will deny the motion to
recuse. A judge may be recused for personal bias or prejudice, having a familial or
fiduciary interest in the proceeding, having personal knowledge of disputed facts, or
having a conflict of interest from his prior practice. See 28 U.S.C. §§ 144, 455. Plaintiff
has not asserted sufficient facts setting forth grounds for disqualification of the
undersigned under either 28 U.S.C. § 144 or § 455.1 See Liteky v. United States, 510
U.S. 540, 555 (1994) (noting that prior judicial rulings alone are not a basis for a motion
for recusal on the grounds of bias or partiality). “[T]he nature of the judge’s bias must be
personal and not judicial.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). In sum, for
the reasons stated herein, the motion for recusal is denied.

1

Plaintiff did not cite to Section 144 or Section 455, and she has not provided an affidavit
supporting the motion as required under Section 144.

Finally, as to Plaintiff’s Motion to Appoint Counsel, in support of the motion, Plaintiff
states, among other things, that he cannot afford counsel; his imprisonment will greatly limit his
ability to litigate the issues; the issues are complex; he has limited access to the law library and
limited knowledge of the law; a trial would involve conflicting testimony; and he has tried to
obtain an attorney to no avail. (Id. at 1). 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 Seeking a Ruling as to Fourteenth Amendment re Order on Motion
for Reconsideration, (Doc. No. 27) is GRANTED;
(2) Plaintiff’s Motion for Discovery, (Doc. No. 32), is DENIED as moot;
(3) Plaintiff’s Motion to Stay Discovery, (Doc. No. 34), is DENIED;
(4) Plaintiff’s Motion to Modify/Expand Discovery, (Doc. No. 35), is DENIED;
(5) Plaintiff’s Motion for Recusal of Judge, (Doc. No. 36), is DENIED;
(6) Plaintiff’s Motions for Leave to File Supplemental Pleading, (Doc. Nos. 31, 37) are
GRANTED;
(7) Plaintiff’s Motion to Appoint Counsel, (Doc. No. 38), is DENIED.

Signed: May 7, 2018