Samples v. Tamarchio et al

Filing 35

ORDER denying 33 Motion to Appoint Counsel; denying 25 Motion for Order for Defendants to Take Pictures. Signed by Magistrate Judge Shiva V Hodges on 6/7/2013.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Forrest Kelly Samples,
Plaintiff,
vs.
Benjamin F. Lewis, Jr.; Amy R. Enloe;
Mathew L. Harper; Katherine Watson
Burgess; Daniel Cotter; Larry
Cartledge; Kay Humphries; and John
Tamarchio,
Defendants.

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C/A No.: 1:13-657-MGL-SVH

Plainti

ORDER

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983,
alleging a violation of his constitutional rights. This matter is before the court on: (1)
Plaintiff’s motion requesting Defendants take pictures of his foot [Entry #25]; and (2)
Plaintiff’s motion for appointment of counsel. [Entry #33].
I.

Motion for an Order to Take Pictures
Plaintiff requests that the court order Defendants to take pictures of his right foot.

[Entry #25]. Plaintiff claims that the pictures will serve as better evidence than written
statements. Id. Defendants argue that they should not be required to assist Plaintiff with
the preparation of his case. [Entry #28]. The Federal Rules of Civil Procedure do not
require a party to create evidentiary documents or records at an opposing party’s request.
Therefore, Plaintiff’s motion is denied.

II.

Motion for Appointment of Counsel
There is no right to appointed counsel in § 1983 cases. Cf. Hardwick v. Ault, 517

F.2d 295, 298 (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
in his motion 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. [Entry #33].
This is a typical complaint 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 fair opportunity to present his or her case. Accordingly, Plaintiff’s request for a
discretionary appointment of counsel under 28 U.S.C. §1915 (e)(1) is denied.
IT IS SO ORDERED.

June 7, 2013
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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