Burris v. North Charleston Police Department et al
ORDER affirming Order 103 . Signed by Honorable R Bryan Harwell on 7/3/2014. (jpet, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Det. Ware; Det. Sturkie; Det. Terry; )
PTL Scott Michael Thomes; Thomas )
Eugene Bennett; and SGT Darin
Shawn Justin Burris,
Civil Action No.: 2:13-cv-0699-RBH
Plaintiff Shawn Justin Burris (“Plaintiff”), proceeding pro se, brought this civil action
against the above captioned Defendants pursuant to 42 U.S.C. § 1983 on March 15, 2013. See
Compl., ECF No. 1. This matter is before the Court on Plaintiff’s objections to an Order of the
Magistrate Judge. See Text Order, ECF No. 103; Pl’s Appeal, ECF No. 105. The Magistrate
Judge’s Order, see ECF No. 103, denied Plaintiff’s Motion to Appoint Counsel and Motion for
Extension of Time, see Mot., ECF No. 102. Plaintiff styles his objections as an “appeal” of the
Magistrate Judge’s Order.1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 20, 2014, Plaintiff filed a Motion to Appoint Counsel and Motion for Extension of
Time, requesting that the Court appoint him counsel “so that Plaintiff may adequately respond to
Defendants’ reply brief (second memorandum) and prepare for trial.” See ECF No. 102 at 3.
Rule 72 of the Federal Rules of Civil Procedure states that a party may submit objections to a
Magistrate Judge’s ruling on non-dispositive matters. See Fed. R. Civ. P. 72(a). The Court
construes Plaintiff’s filing as such.
Plaintiff also requests an enlargement of time of forty-five days from when the Court reviews his
motion. See id.
On June 20, 2014, the Magistrate Judge denied Plaintiff’s motion. See ECF No. 103. The
Magistrate Judge noted that an extension of time was not warranted in light of multiple extensions
previously given Plaintiff. See id. She explained that Defendants’ motion had been pending since
November 18, 2013, and Plaintiff had “ample opportunity to file a substantive response.” See id.
She also found that Plaintiff’s motion to appoint counsel was without merit. See id. Plaintiff had
previously moved to appoint counsel on June 3rd, 2013, see Mot., ECF No. 26, which the Court
denied, finding that Plaintiff failed to show exceptional or unusual circumstances which would
warrant appointing counsel, see Order, ECF No. 28 at 1. Plaintiff again moved to appoint counsel
on July 19, 2013, see Mot., ECF No. 45, which the Court again denied, finding that Plaintiff still
had not shown exceptional or unusual circumstances which would warrant appointing counsel, see
Text Order, ECF No. 48. In denying Plaintiff’s most recent motion, the Magistrate Judge found
that, yet again, Plaintiff had not shown exceptional or unusual circumstances which would justify
appointing counsel. See ECF No. 103. Plaintiff objects to these rulings of the Magistrate Judge.
Rule 72(a) of the Federal Rules of Civil Procedure permits a party to submit objections to a
Magistrate Judge’s ruling on non-dispositive matters. Fed. R. Civ. P. 72(a); see 28 U.S.C. §
636(b)(1)(A). As a non-dispositive matter, the review of a Magistrate Judge’s order is governed by
the “clearly erroneous” or “contrary to law” standard of review. Id.
Only if a Magistrate Judge’s decision is “clearly erroneous or contrary to law” may a
District Judge modify or set aside any portion of the decision. Fed. R. Civ. P. 72(a); see also 28
U.S.C. § 636(b)(1)(A). A court’s “finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
see also Harman v. Levin, 772 F.2d 1150, 1152 (4th Cir. 1985). “Although the ‘contrary to law’
standard permits plenary review of legal conclusions, decisions related to discovery disputes and
scheduling are accorded greater deference.” Stonecrest Partners, LLC v. Bank of Hampton Roads,
770 F. Supp. 2d 778, 782 (E.D.N.C. 2011). “In light of the broad discretion given to a magistrate
judge in the resolution of nondispositive discovery disputes, the court should only overrule a
[M]agistrate [J]udge’s determination if this discretion is abused.” Weber v. Jones, No. 8:12-3349TMC, 2014 WL 1094418, at *1 (D.S.C. Mar. 18, 2014) (quoting Shoop v. Hott, No. 5:08CV188,
2010 WL 5067567, at *2 (N.D.W. Va. Dec. 6, 2010)).
As previously noted, the Magistrate Judge found that Plaintiff had not shown exceptional or
unusual circumstances which would warrant appointment of counsel. There is no constitutional
right to have counsel appointed in a civil case. See McMillian v. Wake Cnty. Sheriff's Dept., 399
Fed. App’x 824, 829 (4th Cir. 2010). Nevertheless, the Court has discretion to appoint counsel for
an indigent in a civil action. 28 U.S.C. § 1915(e); Smith v. Blackledge, 451 F.2d 1201, 1203 (4th
Cir. 1971). The Court, however, may appoint counsel in § 1983 cases only when exceptional
circumstances exist. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The Fourth Circuit has
stated that the existence of exceptional circumstances will “turn on the complexity of a party’s
claims and his ability to present them.” Goodman v. Johnson, 524 Fed. App’x 887, 891 (4th Cir.
2013) (citing Whisenant, 739 F.2d at 163).
After a review of the pleadings and Plaintiff’s various filings, the Court finds no issue with
the Magistrate Judge’s determination that Plaintiff has not shown exceptional circumstances which
reflect a need to have counsel appointed. The case itself does not appear atypically complex, and
Plaintiff has shown to be able to adequately represent his interests up to this juncture in the lawsuit.
Plaintiff’s participation in this case has been extensive, and his filings are lengthy and relevant. In
any event, the Court notes that Plaintiff largely bases his argument on the assertion that he has
presented sufficient evidence to survive summary judgment, and claims that he especially needs
counsel to assist in preparing for trial. Defendants’ dispositive motion, however, has not been
addressed by the Court at this juncture. Plaintiff has not yet survived summary judgment, and
therefore there is no guarantee of a trial.2
As a result, Plaintiff’s claims that he needs help in
preparing for trial are premature. Accordingly, after thorough review of the record, the Court finds
no abuse of discretion by the Magistrate Judge. See Weber, 2014 WL 1094418, at *1. The
Magistrate Judge’s ruling denying the motion to appoint counsel was not clearly erroneous or
contrary to law.
Plaintiff also seeks an extension of time in which to respond to Defendants’ motion for
summary judgment. The Court notes that Defendants’ motion was filed on November 19, 2013.
See Mot. for Summ. J., ECF No. 67. Because this is a dispositive motion, the Court issued an Order
informing Plaintiff of the importance of a summary judgment motion and his need to file a
response. See Order, ECF No. 68. This Order specified that a response was due within thirty-four
days, which set the deadline to respond for December 27, 2013. Plaintiff requested a ninety-day
extension of time on December 6, 2013, see ECF No. 73, which the Court granted, see ECF No. 74
at 4. This moved the deadline to respond back to March 27, 2014. Plaintiff then moved to stay the
deadline to respond on February 4, 2014, see ECF No. 78, but the Court denied this motion and
informed Plaintiff that the deadline to respond remained March 27, 2014, see ECF No. 79. Plaintiff
The Court offers no opinion on the merits of Defendants’ motion. The Court simply notes that the
disposition of Defendants’ motion is uncertain at this juncture.
again moved for an extension of time to respond on March 3, 2014, see ECF No. 84, but the Court
also denied this motion and again warned Plaintiff that the deadline to respond was still March 27,
2014, see ECF No. 84. Plaintiff filed another motion to stay the deadline on March 10, 2014, see
ECF No. 87, which the Court granted, see ECF No. 88. This moved the deadline to respond to
Defendants’ motion back to May 12, 2014. See id. Plaintiff filed yet another motion to stay on
March 24, 2014, see ECF No. 91, which the Court denied as moot, see ECF No. 92. In the order
denying this motion, the Court explained that the deadline to respond remained May 24, 2014.
Plaintiff timely filed his response in opposition to summary judgment on May 14, 2014.
This filing consisted of nearly 100 pages of argument and supporting documents. See ECF No. 95.
Defendants replied on June 10, 2014. Plaintiff then made the present motion for an extension, see
ECF No. 102 at 3, which the Magistrate Judge denied based on the extensions previously granted,
see ECF No. 103. The Court agrees with the Magistrate Judge that, to the extent Plaintiff seeks to
further respond to Defendant’s motion, an extension is unwarranted. Plaintiff had over six months
in which to file a response, and his May 14, 2014 response appears to be more than adequate.
Moreover, to the extent this can be construed as a request to file a sur-reply, the Court also finds
that an extension of time is unwarranted. The District of South Carolina local rules specify that
“replies to responses are discouraged.” DSC Local Rule 7.07. The Court notes that not only are
sur-replies even more discouraged, but they are also typically unnecessary. This matter has been
fully briefed and any surreply is unwarranted. After thorough review of the record, the Court again
finds no abuse of discretion by the Magistrate Judge. See Weber, 2014 WL 1094418, at *1. The
Magistrate Judge’s ruling denying the motion for an extension of time was not clearly erroneous or
contrary to law.
Based on the foregoing, Plaintiff’s objections to the Magistrate Judge’s order denying his
motion to appoint counsel and motion for extension of time are without merit. Accordingly, the
Order, ECF No. 103, is AFFIRMED.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
July 3, 2014
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