Richardson v. Vandermosten et al

Filing 34

ORDER denying 11 MOTION for Preliminary Injunction; denying 12 MOTION to Appoint Counsel; denying 18 MOTION to Amend/Correct; denying 24 MOTION to Amend/Correct; and denying 28 MOTION for issuance of Subpoena. Signed by Magistrate Judge Shiva V Hodges on 8/24/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kelvin Richardson, #277898,
Plaintiff,
vs.
County of Greenville; John
Vandermosten, Assistant County
Administrator; Scotti Bodiford,
Operations Administrator; Tracy Krein,
Medical Administrator; Medical
Supervisor Kim Olszewski; Clinical
Supervisor Katie Barnes; Nurse Downs;
Nurse Johnson; Nurse Gannon; and
Nurse Garbacka,
Defendants.

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C/A No.: 1:15-1610-GRA-SVH

ORDER

Kelvin Richardson (“Plaintiff”), proceeding pro se and in forma pauperis, filed
this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights
while incarcerated in the Greenville County Detention Center (“GCDC”). This matter
comes before the court on the following motions of Plaintiff: (1) motion for a preliminary
injunction [ECF No. 11]; (2) motion to appoint counsel [ECF No. 12]; (3) motions to
amend the complaint [ECF Nos. 18, 24]; and (4) motion for subpoenas [ECF No. 28].
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(d) (D.S.C.), all pretrial proceedings have been referred to the undersigned.
I.

Motion for a Preliminary Injunction
In his motion for a preliminary injunction, Plaintiff seeks unspecified medications

allegedly ordered by orthopedic surgeons. [ECF No. 11]. It appears that Plaintiff is no

longer housed in the GCDC, as he submitted a notice of change of address on July 20,
2015. [ECF No. 32]. Therefore, Plaintiff’s request for injunctive relief is now moot. See
Ajaj v. Smith, 108 F. App’x 743 (4th Cir. 2004) (holding where inmate seeking equitable
relief from conditions at one facility was transferred from that facility to another
institution, his claims were moot); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)
(finding transfer mooted prisoner’s claims for injunctive and declaratory relief); Magee v.
Waters, 810 F.2d 451, 452 (4th Cir. 1987) (holding prisoner’s transfer moots his request
for injunctive relief against conditions of confinement in facility from which he was
transferred). Plaintiff’s motion for a preliminary injunction is denied as moot.
II.

Motion to Appoint Counsel
Plaintiff requests the court appoint him counsel. [ECF No. 12]. 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.
After a review of the file, this court has determined that there are no exceptional or
unusual circumstances presented that 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
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court outlines proper procedure so the uncounseled litigant will not be deprived of a fair
opportunity to present his case.

Accordingly, Plaintiff’s request for a discretionary

appointment of counsel under 28 U.S.C. § 1915(e)(1) is denied.
III.

Motions to Amend the Complaint
Plaintiff filed two motions to amend his complaint. [ECF Nos. 18, 24]. In his

motions to amend, Plaintiff seeks to clarify that he is suing all defendants in their
individual and official capacities and that he alleges all defendants were acting under the
color of state law at all times. Id. Plaintiff also seeks to add general allegations such as
“All named defendants are legally responsible for the all named violations that
constituted Deliberate Indifference, Cruel and Unusual Punishment and Refusal of Due
Process.” [ECF No. 24 at 2 (errors and emphasis in original)].
“[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). The allegations in Plaintiff’s motions to amend
the complaint are similar to the allegations in the original complaint and the court
construes pro se complaints liberally. While Plaintiff seeks to add allegations containing
largely legalese, such allegations are more akin to legal argument and would more
appropriately be included as support in a response to a motion for summary judgment.
Because Plaintiff has not set forth new factual allegations, Plaintiff’s motions to amend
are denied as futile.
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IV.

Motion for Subpoenas
In his motion for a subpoena, Plaintiff requests five subpoena duces tecum forms,

but fails to provide information about the documents he seeks to subpoena or show that
they are relevant. [ECF No. 28].
There are costs associated with a subpoena for documents, such as the cost of the
copies and the cost of serving the subpoena. See Badman v. Stark, 139 F.R.D. 601, 604
(M.D. Pa. 1991) (holding inmates proceeding under 28 U.S.C. § 1915 are not entitled to
have their discovery costs underwritten or waived); see also Nance v. King, No. 88-7286,
1989 WL 126533, at *1 (4th Cir. Oct. 18, 1989) (unpublished opinion). Because Plaintiff
has not demonstrated the subpoenas are relevant to the instant case or tendered the
necessary fees for the subpoenas, Plaintiff’s motion for subpoenas [ECF No. 28] is
denied at this time with leave to refile after he has demonstrated the relevance of the
requested subpoena and tendered the necessary copy costs and costs of service.
V.

Conclusion
For the foregoing reasons, the undersigned denies the following motions of

Plaintiff: (1) motion for a preliminary injunction [ECF No. 11]; (2) motion to appoint
counsel [ECF No. 12]; (3) motions to amend the complaint [ECF Nos. 18, 24]; and (4)
motion for subpoenas [ECF No. 28].
IT IS SO ORDERED.

August 24, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge
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