McPherson v. Kutz et al

Filing 49

ORDER denying 46 MOTION to Appoint Counsel. The plaintiff shall advise the court as to whether he wishes to continue with this case and to file a response to defendants' 37 MOTION TO DISMISS within 14 days from the date of this order. Plaintiff is further advised that if he fails to respond, this action will be recommended for dismissal with prejudice for failure to prosecute. Signed by Magistrate Judge Paige J Gossett on 2/1/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Sanchez Ozell McPherson,

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Plaintiff,
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v.
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SPO M. Kutz, Officer, Charleston Police
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Department; Detective Osburne, Charleston
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Police Department,
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Defendants.
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_____________________________________ )

C/A No. 0:15-1859-RMG-PJG

ORDER

The plaintiff has filed this action, pro se, alleging a violation of his constitutional rights.
Plaintiff is a federal inmate currently housed at the Federal Correction Complex in Allenwood,
Pennsylvania. The defendants filed a motion to dismiss on November 5, 2015, pursuant to the
Federal Rules of Civil Procedure. (ECF No. 37.) As the plaintiff is proceeding pro se, the court
entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on November 6,
2015, advising the plaintiff of the importance of a motion to dismiss and of the need for him to file
an adequate response. (ECF No. 38.) The plaintiff was specifically advised that if he failed to
respond adequately, the defendants’ motion may be granted, thereby ending his case.
Notwithstanding the specific warning and instructions set forth in the court’s Roseboro order,
the plaintiff failed to respond to the motion. As the plaintiff is proceeding pro se, the court filed a
second order on December 15, 2015, advising the plaintiff that it appeared to the court that he was
not opposing the motion and wished to abandon this action, and giving the plaintiff an additional
fourteen (14) days in which to file his response to the defendant’s motion for summary judgment.
(ECF No. 36.) The plaintiff was specifically warned that if he failed to respond, this action would
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be recommended for dismissal with prejudice for failure to prosecute. See Davis v. Williams, 588
F.2d 69, 70 (4th Cir. 1978); Fed. R. Civ. P. 41(b). In response to the court’s order, the plaintiff filed
a motion requesting the appointment of counsel. (ECF No. 46.)
The plaintiff previously moved for—and was denied—appointment of counsel in this matter.
(See Order, ECF No. 24.) The plaintiff’s current motion does not provide any additional reasons for
the appointment of counsel, but reiterates that he is housed in the Special Management Unit and is
ignorant of the law. As stated in the court’s prior order, the court may use its discretion to request
counsel to represent an indigent in a civil action, but such discretion “should be allowed only in
exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see 28 U.S.C. § 1915(e)(1);
Mallard v. United States Dist. Court for S. Dist. of Iowa, 490 U.S. 296 (1989). 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, 490 U.S. 296.
Upon review of the file, the court has determined that there are no exceptional or unusual
circumstances presented at this time, nor would the plaintiff be denied due process if the court denied
plaintiff’s request for counsel. Id. Accordingly, it is hereby
ORDERED that the plaintiff’s motion requesting counsel under 28 U.S.C. § 1915(e)(1) is
denied. It is further
ORDERED that the plaintiff shall advise the court as to whether he wishes to continue with
this case and to file a response to the defendants’ motion to dismiss within fourteen (14) days from
the date of this order. Plaintiff is further advised that if he fails to respond, this action will be

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recommended for dismissal with prejudice for failure to prosecute. See Davis v. Williams, 588
F.2d 69, 70 (4th Cir. 1978); Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.

___________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
February 1, 2016
Columbia, South Carolina

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