Laureano v. Jones
Filing
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ORDER denying 51 Motion to Compel; denying 69 Motion to Appoint Counsel; denying 71 Motion to Appoint Counsel; denying 23 Motion to Amend/Correct; denying 23 Motion for Subpoenas. Signed by Magistrate Judge Shiva V Hodges on 11/2/2011.(mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
William Laureano,
Plaintiff,
vs.
Captain (FNU) Jones,
Defendant.
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C/A No.: 1:11-779-TMC-SVH
ORDER
Plaintiff, proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. §
1983, alleging violations of his constitutional rights while incarcerated at Anderson
County Detention Center (“ACDC”). Before the court are the following motions: (1)
Plaintiff’s Motion to Amend the Complaint [Entry #23]; (2) Plaintiff’s Motion for
Subpoenas [Entry #23]; (3) Plaintiff’s Motion to Compel [Entry #51]; and (4) Plaintiff’s
Motions to Appoint Counsel [Entry #69, #71]. All pretrial proceedings in this case were
referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.).
I.
Factual Background
In his complaint, Plaintiff alleges Defendant Jones has confiscated his mail.
Specifically, Plaintiff’s complaint states:
I myself know my mail has been confiscated because I have written to
Christian organi[z]ation[s] for information, my brother has told me on
several occa[s]ions that he has not received my mail, and also a letter to
Major Bryant, and grievance officer, I’ve yet not heard any response.
Because Captain Jones confiscated same.
Compl. at 5–6 [Entry #1]. Plaintiff asserts no other allegations regarding why he believes
Defendant is confiscating his mail. Plaintiff also complains that Defendant has
confiscated his grievances. See generally Compl. [Entry #1]. Finally, Plaintiff complains
that another inmate attacked him, but that no criminal charges were brought against the
perpetrator, because of Defendant’s alleged failure to show all video evidence to a judge.
Id. at 6–7.
II.
Discussion
A.
Motion to Amend
Plaintiff seeks to amend his complaint to add as defendants Solicitor Chrissy T.
Adams, Public Defender Andrew T. Potter, and his former lawyer in his state criminal
case, Hugh W. Welborn. Adams, Potter, and Welborn are all lawyers currently or
formerly involved in Plaintiff’s state criminal case who Plaintiff seeks to sue for
conspiracy to coerce him to enter a plea.
“[L]eave [to amend] shall be freely given when justice so requires.” Fed. R. Civ. P.
15(a). “A motion to amend should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving party,
or the amendment would be futile.” HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th Cir.
2001) (internal quotation marks omitted); see also Gordon v. Leeke, 574 F.2d 1147, 115253 (4th Cir. 1978) (a pro se litigant is entitled to the opportunity to amend his pleadings if
he has alleged a potentially meritorious cause of action).
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Construing Plaintiff’s motions to amend his complaint liberally, the court finds
that granting Plaintiff’s motion to amend would be futile at this time. As a solicitor,
Adams enjoys absolute prosecutorial immunity from claims brought pursuant to 42
U.S.C. § 1983. Imbler v. Patchman, 424 U.S. 409, 431 (1976) (holding that “in initiating
a prosecution and in presenting the State’s case, the prosecutor is immune from a civil
suit for damages under § 1983.”). The Imbler Court acknowledged the broadness of its
holding as follows:
To be sure, this immunity does leave the genuinely wronged defendant
without civil redress against a prosecutor whose malicious or dishonest
action deprives him of liberty. But the alternative of qualifying a
prosecutor’s immunity would disserve the broader public interest. It would
prevent the vigorous and fearless performance of the prosecutor’s duty that
is essential to the proper functioning of the criminal justice system.
Moreover, it often would prejudice defendants in criminal cases by skewing
post-conviction judicial decisions that should be made with the sole purpose
of insuring justice. With the issue thus framed, we find ourselves in
agreement with Judge Learned Hand, who wrote of the prosecutor’s
immunity from actions for malicious prosecution:
“As is so often the case, the answer must be found in a balance between the
evils inevitable in either alternative. In this instance it has been thought in
the end better to leave unredressed the wrongs done by dishonest officers
than to subject those who try to do their duty to the constant dread of
retaliation.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert.
denied, 339 U.S. 949 (1950).
Imbler at 427–428. In delineating the boundaries of its holding, the Imbler Court
distinguished between the absolute immunity a prosecutor enjoys in activities “intimately
associated with the judicial phase of the criminal process” and the good-faith defense
prosecutors have when engaging in certain investigative activities. Id. at 430. Plaintiff
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seeks to sue Adams for prosecutorial misconduct and for conspiracy to coerce him to
enter a plea, both of which are intimately associated with the judicial phase of the
criminal process. Therefore, Adams is not subject to suit pursuant to 28 U.S.C. § 1983
and Plaintiff’s motion to amend the complaint to add Adams [Entry #23] is denied as
futile.
Additionally, Potter and Wellborn appear to have both represented Plaintiff during
his state criminal case.1 However, neither Potter and Wellborn have acted under the color
of state law. See Polk County v. Dodson, 454 U.S. 312, 317–325 (1981); Deas v. Potts,
547 F.2d 800, 800 (4th Cir. 1976) (stating that an attorney, whether retained,
court-appointed, or a public defender, does not act under color of state law when
performing traditional functions as counsel). Additionally, Plaintiff has not stated
sufficient allegations to set forth a state law cause of action against Potter or Wellborn.
Therefore, Plaintiff has not stated a claim upon which relief can be granted against Potter
and Wellborn, and his proposed amendment to the complaint [Entry #23] is denied as
futile.
B.
Motion for Subpoenas
Plaintiff requests the court subpoenas for various case files, all of which appear to
relate to his state criminal case, and not to the case at hand. Additionally, Plaintiff has
failed to submit any funds to pay for the information he requests be subpoenaed.
1
It is unclear whether either Potter or Wellborn is still representing Plaintiff in his
criminal case.
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Although Plaintiff has been granted in forma pauperis status, it is well-settled that a grant
of such status does not mean that an “in forma pauperis plaintiff’s discovery [or other
court] costs either are underwritten or are waived.” Badman v. Stark, 139 F.R.D. 601, 604
(M.D.Pa. 1991). The Badman case involved an indigent plaintiff seeking issuance of a
subpoena duces tecum to be served on a third-party. The court specifically held that he or
she must simultaneously tender fees allowed by law with the service of the subpoena.
Badman v. Stark, 139 F.R.D. at 604. Several Courts of Appeals have held that federal
district courts should decline to issue subpoenas for indigent plaintiffs in § 1983 cases
without payment of the costs. See, e.g., Boring v. Kozakiewicz, 833 F.2d 468, 473–75,
(3rd Cir. 1987) (district court not required to pay for plaintiffs' expert medical witness);
Johnson v. Hubbard, 698 F.2d 286, 289–91 (6th Cir. 1983) (lower courts have no duty to
pay for witness fees in civil, non-habeas corpus cases); see generally United States
Marshals Service v. Means, 741 F.2d 1053, 1057 (8th Cir. 1984) (en banc ) (in forma
pauperis grant under § 1915 does not require courts of the United States to pay witness
fees and other costs for indigent plaintiffs in § 1983 actions); CF & I Steel Corp. v. Mitsui
& Co. (U.S.A.), Inc., 713 F.2d 494, 496 (9th Cir. 1983). Therefore, because Plaintiff has
not tendered the fees for service of the subpoenas2 and has not demonstrated the
subpoenas are relevant to the instant case, Plaintiff’s motion for subpoenas [Entry #23] is
denied.
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The undersigned notes, without deciding, that Plaintiff would not necessarily be
entitled to the subpoenas if he had tendered the requisite fees.
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C.
Motion to Compel
Plaintiff’s motion to compel filed August 5, 2011, seeks responses to submitted
discovery issued on July 2, 2011. Defendant notes the court had granted an extension
until August 24, 2011 to respond to the discovery. [Entry #53]. Plaintiff did not file a
reply brief. Therefore, Plaintiff’s motion to compel [Entry #51] is denied as moot.
D.
Motions to Appoint Counsel
Plaintiff has also sought appointment of counsel. There is no right to appointed
counsel in § 1983 cases. Cf. Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975). While the
court is granted the power to exercise its discretion to appoint counsel for an indigent in a
civil action, 28 U.S.C. § 1915(e)(1); Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971),
such appointment “should be allowed only in exceptional cases.” Cook v. Bounds, 518
F.2d 779, 780 (4th Cir. 1975). Plaintiff has not shown that any exceptional circumstances
exist in this case. Rather, he simply states that he is a pro se prisoner with limited legal
knowledge and access to legal resources.
These are typical of complaints by prisoners seeking to pursue civil cases pro se in
federal court, and after a review of the file, this court has determined that there are no
exceptional or unusual circumstances presented which would justify the appointment of
counsel, nor would Plaintiff be denied due process if an attorney were not appointed.
Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984). In most civil rights cases, the issues are
not complex, and whenever such a case brought by an uncounseled litigant goes to trial,
the court outlines proper procedure so the uncounseled litigant will not be deprived of a
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fair opportunity to present his or her case.
Accordingly, Plaintiff’s motions for
appointment of counsel [Entry #69, #71] are denied.
III.
Conclusion
For the foregoing reasons, the court denies the following motions: (1) Plaintiff’s
Motion to Amend the Complaint [Entry #23]; (2) Plaintiff’s Motion for Subpoenas [Entry
#23]; (3) Plaintiff’s Motion to Compel [Entry #51]; and (4) Plaintiff’s Motions to Appoint
Counsel [Entry #69, #71].
IT IS SO ORDERED.
November 2, 2011
Florence, South Carolina
Shiva V. Hodges
United States Magistrate Judge
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