McClam v. Livingston et al

Filing 30

ORDER denying 26 MOTION to Amend/Correct 1 Complaint and denying 23 MOTION to Appoint Counsel. Signed by Magistrate Judge Shiva V Hodges on 3/27/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Leo McClam,
Plaintiff,
vs.
Mr. NFN Livingston, Officer; Judy
Dupree, Social Worker; Janice Thomas,
RN; Dr. NFN Cross; Kia Wilson, Horry
County Attorney; and Kenny Boone,
Sheriff; suing each defendant in his own
private individual capacities,
Defendants.

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C/A No.: 3:15-362-TLW-SVH

ORDER

Leo McClam (“Plaintiff”), proceeding pro se and in forma pauperis, filed this
action pursuant to 42 U.S.C. § 1983. This matter comes before the court on Plaintiff’s
motion for appointment of counsel [ECF No. 23] and motion to amend the complaint
[ECF No. 26]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ.
Rule 73.02(B)(2)(e) (D.S.C.), all pretrial proceedings have been referred to the
undersigned.
I.

Motion for Appointment of Counsel
Plaintiff’s second motion for appointment of counsel states that her is without

adequate knowledge of the law. [ECF No. 23].1 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

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The undersigned denied Plaintiff’s first motion for appointment of counsel [ECF No.
18] on March 5, 2015. [ECF No. 19].

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).
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). Accordingly, Plaintiff’s request for a discretionary
appointment of counsel under 28 U.S.C. §1915(e)(1) is denied.
II.

Motion to Amend
In his amended complaint, Plaintiff alleges that he needs to add defendants to his

lawsuit to protect his life due to the increase in harassment. [ECF No. 26]. Without
providing any additional factual allegations, Plaintiff lists the names and addresses of two
proposed additional defendants. Id.
“[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). A complaint must contain sufficient factual
matter, accepted as true, to state a claim that is plausible on its face, and the reviewing
court need only accept as true the complaint’s factual allegations, not its legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678‒79 (2009). Plaintiff’s motion to amend
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must be denied as futile because Plaintiff has failed to provide sufficient factual
allegations pursuant to Fed. R. Civ. P. 8(a).
III.

Conclusion
For the foregoing reasons, the undersigned denies Plaintiff’s motion for

appointment of counsel [ECF No. 23] and motion to amend the complaint [ECF No. 26].
IT IS SO ORDERED.

March 27, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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