King v. Johnson et al

Filing 70

ORDER RULING ON REPORT AND RECOMMENDATIONS incorporating 68 Report and Recommendations, granting with the condition that if he re-files this action at a later date, Plaintiff is required to pay Defendants' attorneys&# 039; fees associated with filing their Motion for Summary Judgment in addition to any costs that would be permitted under Federal Rule of Civil Procedure 41(d), re 60 Motion to Dismiss filed by Kipper Ken King; denying 53 Motion to Appoint Coun sel filed by Kipper Ken King; and dismissing all other pending motions as moot, re 20 Motion to Dismiss filed by Lt Fulton, 21 Motion to Dismiss filed by C O Johnson, 40 Motion for Extension of Time, Motion to Appoint Counsel, filed by Kip per Ken King, 41 Motion for Preliminary Injunction filed by Kipper Ken King, 59 Motion for Summary Judgment, filed by Lt Fulton, C O Johnson, Mr Holland, Captin Coleman. Signed by Honorable J Michelle Childs on 6/28/2012. (jpet, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ROCKHILL DIVISION
Kipper Ken King,

)
)
Plaintiff,
)
)
vs.
)
)
C.O. Johnson; Mr. Holland; Lt. Fulton;
)
and Captin Coleman,
)
)
Defendants.
)
____________________________________)

Civil Action No. 0:11-cv-02571
ORDER

Plaintiff Kipper Ken King, proceeding pro se, filed this action pursuant to 42 U.S.C.§1983
alleging a violation of his constitutional rights. This matter is before the court on the Plaintiff’s
Motions for Appointment of Counsel. [Doc. 13] and the Magistrate Judge’s Report and
Recommendation [Doc. 68], filed on June 18, 2012, recommending that Plaintiff’s Motion to
Dismiss [Doc. 60] be granted and the Complaint be dismissed without prejudice. The Report and
Recommendation further recommends that as a condition of dismissal without prejudice, that the
Plaintiff be required, if he re-files this action at a later date, to pay the defendants’ attorneys’ fees
associated with filing their Motion for Summary Judgment in addition to any costs that would be
permitted under Federal Rule of Civil Procedure 41(d). The Report and Recommendation further
recommends that all other pending motions be terminated. [Docs. 20, 21, 40, 41, 53, 59]. The
Report and Recommendation sets forth in detail the relevant facts and legal standards on this matter,
and the court incorporates the Magistrate Judge’s recommendation without a recitation.
Plaintiff was advised of his right to file objections to the Report [Doc. 68 at 5]. However,
Plaintiff filed no objections to the Report.

1

In the absence of objections to the Magistrate Judge's Report, this court is not required to
provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). Rather, "in the absence of a timely filed objection, a district court need not conduct
a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Furthermore,
failure to file specific written objections to the Report results in a party's waiver of the right to
appeal from the judgment of the District Court based upon such recommendation. 28 U.S.C. §
636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
There is no right to appointed counsel in § 1983 cases. Hardwick v. Ault, 517 F.2d 295 (5th
Cir. 1975). As stated in 28 U.S.C. § 1915(e)(1), the court may use its discretion to appoint counsel
for an indigent in a civil action. Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971). However, such
appointment “should be allowed only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th
Cir. 1975). Whether exceptional circumstances are present depends on the type and complexity of
the case, and the pro se litigant’s ability to prosecute it. Whisenant v. Yuam, 739 F.2d 160 (4th
Cir.1984), abrogated on other grounds by Mallard v. United States Dist. Court for S. Dist. of Iowa,
490 U.S. 296 (1989).
Upon review of the file, the court has determined that there are no exceptional or unusual
circumstances presented at this time which would justify the appointment of counsel, nor would the
Plaintiff be denied due process if an attorney were not appointed. Id. Accordingly, the Plaintiff's
request for a discretionary appointment of counsel [Doc. 53] under 28 U.S.C. § 1915(e)(1) is
2

DENIED.

Plaintiff’s Motion to Dismiss [Doc. 60] is GRANTED and the Complaint is

DISMISSED without prejudice [Doc. 1]. However, Plaintiff is required, if he re-files this action
at a later date, to pay Defendants’ attorneys’ fees associated with filing their Motion for Summary
Judgment in addition to any costs that would be permitted under Federal Rule of Civil Procedure
41(d). Furthermore, all other pending motions are DISMISSED as moot. [Docs. 20, 21, 40, 41, 59].
IT IS SO ORDERED.

United States District Judge

Greenville, South Carolina
June 28, 2012

3