Devlin v. Lark et al

Filing 47

ORDER denying Plaintiff's 43 MOTION to Produce; denying Plaintiff's 45 MOTION to Appoint Counsel; and denying Plaintiff's 46 MOTION to Amend/Correct 1 Complaint as untimely. Signed by Magistrate Judge Shiva V Hodges on 3/16/2018. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Thaddeus L. Devlin,
Plaintiff,
vs.
Luke Lark; Lt. Sidney Montgomery;
Sgt. Ursula Jackson; and Officer
Graggs, individually and in their official
capacities,
Defendants.

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C/A No.: 1:17-1713-JMC-SVH

ORDER

Thaddeus L. Devlin (“Plaintiff”), proceeding pro se and in forma
pauperis, brought this action pursuant to 42 U.S.C. § 1983, alleging
violations of his constitutional rights. All pretrial proceedings in this case
were referred to the undersigned pursuant to the provisions of 28 U.S.C. §
636(b) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.). This matter comes before
the court on the following motions filed by Plaintiff: (1) Motion to Produce
[ECF No. 43]; (2) Motion to Appoint Counsel [ECF No. 45]; and (3) Motion to
Amend the Complaint [ECF No. 46].
For the reasons that follow, the court denies Plaintiff’s motions.
I.

Motion to Produce
Plaintiff’s “First Request for Production of Documents” is dated March

12, 2018. The deadline for the expiration of discovery is March 18, 2018, and

the scheduling order provides “All discovery requests shall be served in time
for the responses thereto to be served by this date.” [ECF No. 40]. Plaintiff’s
motion to produce is untimely, as there is not sufficient time under the
scheduling order for the responses to be served. In addition, discovery should
be served on the opposing party, not filed with the court. Therefore, the
undersigned denies Plaintiff’s motion to produce [ECF No. 43].1
II.

Motion to Appoint Counsel
Plaintiff has filed a second motion for the court to appoint him counsel.

[ECF No. 45]. As the court explained in its July 24, 2017 order denying
Plaintiff’s first motion to appoint counsel, there is no right to appointed
counsel in 42 U.S.C. § 1983 civil rights 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 has not shown that any
exceptional circumstances exist in this case.

Despite labeling his motion “First Request for Production of Documents,”
Plaintiff also filed a motion to compel [ECF No. 44], in which he indicates
that he served requests for documents on Defendants on October 2, 2017.
Defendants’ response to Plaintiff’s motion to compel is due by March 28,
2018, so the court will await ruling on that motion until further briefing.
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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 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 again
denied.
III.

Motion to Amend Complaint
Plaintiff has submitted an amended complaint, which the court

liberally construes as a motion to amend pursuant to Fed. R. Civ. P. 15.
Plaintiff provides no explanation of why he requests to amend. The deadline
to amend pleadings expired on October 19, 2017. [ECF No. 28]. Plaintiff’s
motion to amend [ECF No. 46] is denied as untimely.
IT IS SO ORDERED.
March 16, 2018
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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